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Opinion by Danforth, J. All March 11, 1880, consideration $1,concur.
391, duly acknowledged and re
corded as a deed of real estate, and EVIDENCE. DEEDS. containing no exception, reserva
tion or N. Y. COURT OF APPEALS.
defeasance. She then
proved the death of P. H., June Hutchins, applt., v. Hutchins,
11, 1880, and introduced in evirespt.
dence his will, which was admitted Decided Jan. 20, 1885.
to probate Oct. 12, 1880, and deIt is only where the party making the dec- vised the premises in question to
larations has, at the time of making them, title to the property that such declara plaintiff in fee, and proved a detions bind his successor in interest. A
mand by her for possession of the declaration to a stranger is mere hearsay. premises served Nov. 3, 1880. It A reservation by parol of a life estate to the was also proved that P. H., paid grantor in case of a deed in fee cannot
$1,391 for the premises and that be sustained. Semble, That a deed cannot be so far con
they were worth from $1,200 to tradicted by parol as to show that it was $1,500 ; that defendant's grantor not intended to operate at all, or that it had a mortgage of $900 on the land was the intention that the grantee should given by defendant, which P. H. acquire no rights whatever under it, or that he should re-convey to the grantor on paid and had discharged nearly a request without any consideration, month after he received his deed Reversing S. C., 15 W. Dig., 370.
from defendant. Oral evidence This was an action of ejectment was admitted, under exception, of to recover possession of certain declarations of P. H., to third perlands conveyed by defendant by sons, as to his motives in acquiring warranty deed, in fee, to P. H., title to the premises, to the effect plaintiff's husband, and which that he intended to assist defendwere devised by him to plaintiff ant, who was his brother, in payin fee. Defendant's answer set ing for the place, to make him a up that the deed from defendant home as long as he lived. Defendto P. H., of the lands in ques- ant was not present at these contion was a mortgage in trust and versations. These declarations that it was expressly agreed that were made before P. H. acquired P. H. should never ask that said title. deed or mortgage be paid, but that R. H. Duell, for applt. he should release, discharge or A. P. Smith, for respt. deed back said land at any time Held, That evidence of declaradefendant so elected, and judg- tions made by P. H., before he ment that the instrument should acquired title to the premises in be discharged of record was de question, as to his intentions and manded. Plaintiff introduced in motives in regard to the premises, evidence a warranty deed of the was inadmissible as against plainpremises to defendant, dated tiff. It is only where the party April 1, 1879 ; a warranty deed making the declarations has, at the from defendant to P. H., dated time of making them, title to the property that such declarations | intention or agreement of the parbind his successor in interest. A ties that the grantee should acquire declaration to a stranger is mere no rights whatever under it, or hearsay.
that he should reconvey to the Defendant was allowed to prove grantor on his request without any under objection that P. H. was consideration. supposed to be worth $15,000, Judgment of General Term, while he swore that he was not a affirming judgment on verdict for man of property.
defendant, reversed, and new trial Held, Error; that this evidence ordered. was irrelevant and improper and
Opinion by Rapallo, J. All cannot be said to have been harm
concur. less. 5+ N. Y., 334. The judge, after charging that
SECURITY ON ATTACHMENT. the only question for the jury to decide was whether the deed from N. Y. SUPREME COURT. GENERAL defendant to P. H. was what it
TERM. FIRST DEPT. purported to be or was intended
William T. Riggs, applt., v. The as a mortgage, was requested by Cleveland, Youngstown & Pittsdefendant's counsel to charge as a burgh RR. Co., respt. further and independent proposi
Decided Jan. 9, 1885. tion, that if P. H. promised that defendant should have possession It is doubtful whether an order increasing
the security required upon an attachof the property during defendant's
ment is appealable to the General Term. life, in consideration of a convey
The amount of security required upon an ance of the premises by defendant,
attachment is in the discretion of the and defendant has kept possession
Court or Judge, and an order fixing it will
not be interfered with upon appeal, unless under that agreement from that
such discretion has been abused, time to this and paid the taxes and It is not an abuse of such discretion to remade valuable improvements on it, quire an undertaking in the sum of $5,000 on the strength of it, then he is
upon an attachment of certain bonds of a
foreign corporation in which defendentitled to possession during his
ant's interest, assuming them to be of par life, and this action cannot be value, is $163,563.60 although their real maintained. The charge was made value is uncertain and is probably much
less than par. as requested and an exception was taken.
The appointment of a foreign receiver of
the corporation issuing the bonds on the Held, That the charge was er- ground of its insolvency is no reason for roneous. A reservation by parol vacating an order previously made, fixing of a life estate to the grantor in
such security. case of a deed in fee cannot be Appeal from order granting mosustained.
tion to increase the security reIt seems that a deed cannot be quired on issuing an attachment, so far contradicted by parol as to and from an order denying motion show that it was not intended to to vacate the order increasing such operate at all, or that it was the security.
Plaintiff brought this action to no sufficient reason for interfering recover damages alleged to be with the discretion exercised by $550,000 for breach of contract, the Court at Special Term in fixing and defendant being a foreign cor- the amount of the undertaking reporation he sued out an attach-quired at $5,000. ment, giving an undertaking of That the reasons assigned by the $500, and the attachment was Special Term for denying the molevied upon defendant's interest in tion to vacate the order directing $110,000 of bonds deposited as col- the increased security were satislateral for loans. The value of factory and his conclusion should defendant's interest in the bonds, not be interfered with. assuming them to be worth par, Orders affirmed. over and above the indebtedness Opinion by Davis, P.J.; Brady for which they were pledged, was and Daniel, JJ., concur in the re$163,568.60, and, although the real sult. value of the bonds was uncertain and was probably much less than EXTRA ALLOWANCE. par, the security required upon N. Y. SUPREME COURT. GENERAL the attachment was increased upon
TERM. FIFTH DEPT. motion of defendant to $5,000. Plaintiff subsequently moved to
Timothy W. Gooding, applt., v. vacate the order requiring this in- Spencer A. Brown et al., respts. creased security on the ground Decided Jan. 1885. that a foreign receiver of defend
Until the contrary is shown, it will be preant had been appointed on account sumed that an order of Special Term alof its insolvency. The Court de- lowing additional costs was rightfully nied this motion upon the ground
granted. Although the record and papers
before the appellate court do not show that this additional fact did not
that the case was difficult and extraordinecessarily affect the value of the
nary the case is not necessarily exclubonds.
ded from the operation of the statute G. C. Lay, for applt.
giving additional allowance. J. M. Ferguson, for respt.
Appeal from Special Term order Held, That it might well be giving defendants additional aldoubted whether the orders in the lowance of $500. case were appealable. That the The trial in this cause, in which amount of the undertaking in such the order appealed from was encases is in the discretion of the tered, did not occupy more than a Court or Judge, and, unless that day. No testimony was given on discretion has been abused, there defendants' part. The facts were seems to be no good ground for few and simple. They showed an holding that an appeal from such executory oral agreement that two an order can be taken to this Court. persons should make their wills 57 How.,170; 15 Abb., 29; 24 How., for the benefit of the survivor. 425. That, assuming that the or- The determination of the case reders were appealable, there was quired the application of only well
settled principles of law to the Opinion by Bradley, J.; Haight, facts, and about the facts there Angle and Childs, JJ., concur. was no dispute on the trial. The controversy involved about $100,
LIMITATIONS. 000. The judge who heard and
Code Civ. Pro., $ 383. decided the case held the court which made the order. It seems
N. Y. SUPREME COURT. GENERAL that the motion was made on
TERM. FOURTH DEPT. papers and statements, some of Rodney C. Webber, applt., v. The which do not appear on this ap- Herkimer and Mohawk Street peal.
R. R. Co., respt.
The contract of a carrier to carry a passenE. M. Morse and E. G. Lapham,
ger is an important element in the pas
senger's right to recover for a personal for respts.
injury caused by the carrier's negligence, Held, That the expression “diffi- but only as inducement and not as subcult and extraordinary” in the
stance. The real ground of action is the
tort or negligent act of the carrier, wherestatute allowing additional allow
by the passenger is injured ; and such acance, Code Civ. Proc., $3253, im- tion must be brought within three years ports something more and other
Appeal from judgment dismissthan usual, common, and ordinary in respect to the labor and skiling complaint and sustaining the
defense of the statute of limitarequired, or in the time occupied tions, and from order demurring in the preparation or trial of the
motion for a new trial on the case or both. 5 How., 278 ; 22 id.,
minutes. 454; 24 id., 385 ; 7 Hun, 184. The
Plaintiff brought this action to decisions give no well defined in
recover damages for an alleged terpretation and application of the
breach of an agreement between rule. See 14 Hun, 110 ; 61 N. Y.,
the parties whereby defendant con564 ; 17 Hun, 87; 16 Abb., 465.
tracted to carry plaintiff from HerSo far as relates to the questions kimer to Mohawk. The gist of the of law presented and the time oc
action is the injury to the person cupied in the trial it does not seem
of plaintiff by reason of the unfitthat the case comes within the fair
ness of the car used and the danmeaning of the terms difficult and
gerous proximity of telegraph poles extraordinary
to defendant's truck whereby, or It is not shown that the judge by reason whereof, plaintiff was who granted the order had not struck and injured by a telegraph knowledge of facts which do not pole while on the car.
The cause appear here. We cannot say there of action occurred June 23, 1879, was an abuse of discretion. 8 W. and the action was commenced in Dig., 57; 9 id., 286; 31 Hun, 403 ; March, 1883, more than three year 29 N. Y., 426 ; 63 Barb., 555.
thereafter. Order affirmed.
The defence interposed was the three years statute of limitations,
CONTRACT. as prescribed by sub-division 5 of
N. Y. SUPREME COURT. GENERAL $ 383, code civ. pro.
TERM. THIRD DEPT. A. B. Steele, for applt.
John F. Holcombe, respt., v. S. Earl, for respt.
Held, No error. Without such Kneeland J. Munson et al., applts. contract the person complaining
Decided Jan., 1885. may have been a trespasser or In March H. entered into a written contract wrongfully upon defendant's car. with M. & L., to cut the timber on cerHence the contract is an important
tain lands, turn it into coal and deliver it
at a certain railroad to cars to be furelement in the right to recover, but
nished by M. & L. In April L. sold out only as inducement and not as sub- his interest to another. In May M. said stance. The real ground of action
to H. that they would not carry out the
contract, and would take the conseis the tort or wrongful act of de
quences. In an action by the assignee of fendant whereby plaintiff is in
H. upon the ground that H. had been jured while rightfully there, and prevented from performing, Held, that as in default of the duty owing by
no tender was shown there could be no defendant to plaintiff and every
recovery ; that L. was not bound by the
statements of M. made after L. had sold passenger. A breach of this con
out his interest in the contract. tract to carry might have occurred A verbal addition to a written contract for which a limitation of the right which fixed the amount of goods to be of action is prescribed by § 382,
delivered thereunder, said amount being
over fifty dollars in value, no part theresuch as a refusal to carry the whole
of having been delivered and nothing distance or a refusal to carry with
having been paid thereon, is void and in a reasonable time. Those are there can be no recovery upon the verbal not personal injuries, and would agreement. not be controlled by $ 383. This In March 1880, one George P. must be deemed an action for neg- Holcombe, plaintiff's assignor, enligence pure and simple, and under tered into a written agreement $ 383 code civ. pro. must be brought with defendant Munson, and the within three years. 48 N. Y. Ct. other defendant, Landon, by which Rep. 44 affirmed in 93 N. Y. 522, he agreed to take charge of applies, whether the form of action and cut, coal and deliver all the was, as in this case, for a breach timber on certain lots of land beof the contract, or simply for the longing to defendants, the charcoal negligence in the discharge of a to be delivered at a railroad to cars duty owing to plaintiff, whereby to be furnished by defendants; for he suffered personal injuries. In this Geo. P. Holcombe was to reeither case the injuries were per-ceive certain sums per bushel. Unsonal and wholly due to the negli- der this clause the first cause of gence of defendant.
action was laid. The agreement Judgment and order affirmed, then went on to provide that dewith costs.
fendants would pay Geo. P. HolOpinion by Boardman, J. ; Har- combe twelve dollars per hundred din, P. J., and Follett, J., concur. bushels for good, merchantable