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and answered as manager by a pearance and joinder of issue by general denial.
the name by which defendant was D. F. & H. Gedney, for applt. sued. Eugene D. Slokem, for respt. Notwithstanding the technical
Held, That it is plain that the errors, under all the facts and cirpleader intended to sue defendant cumstances, the judgment is afas a joint stock association al-firmed under $ 3063 of the Code, though he has not named the Pre- but without costs of the appeal. sident or Treasuerr or the individ- Opinion by Pratt, J.; Barnard, uals composing it.
P. J., and Dykman, J., concur. By a general appearance defendant could waive the objection that the President or Treasurer was not named, but it was incum- FRAUD. ATTORNEYS. bent on plaintiff to prove the ex
N. Y. COURT OF APPEALS. istence of such association by competent evidence, which was not Stout et. al., respts., v. Smith, done. 14 How., 256. A general
A general applt. denial put this question in issue.
Decided Jan. 20, 1885. 14 Hun., 256.
It was not necessary for defen- Dishonest conduct of a person, in the abdant to put in a verified answer
sence of any definite and established rela
tion of confidence, does not furnish any alleging that it was not a corpora
valid legal ground for setting aside a contion, as required by $ 1776 of the
tract in an action to recover damages by Code, inasmuch as that was no reason of undue and improper influence allegation in the complaint that
exercised over the party with whom he
has been dealing. defendant was a corporation.
In an action for damages for fraud in exThere is nothing in the case to changing lands it appears that defendant, show who or what is made a party who was an attorney and also a banker, defendant. Neither does the case
drew all the papers. It did not appear,
that he was ever employed by plaintiffs in show any service of process upon
any litigation or received a retainer from any officer of any corporation or
them or agreed to act as their attorney. association competent to receive a Held, insufficient to establish the relationsummons in an action against such ship of attorney and client between them. defendant. It does not follow that This action was brought to rebecause plaintiff did not name a cover damages for fraud arising
out of various transactions in the ciation he must have sued defen- exchanging or sale of farms between dant as a corporation.
plaintiffs and defendant. It was However, it does not affect the claimed that the relation of attormerits of the action, which are all ney and client existed between dewith plaintiff, whether defendant fendant and plaintiffs. It apwas sued as a corporation or a peared that defendent was an atjoint stock association, inasmuch torney at law, but that his princias it appears that there was an ap- pal business was that of a banker and that he did not practice law to David B. Hill, for applts. any great extent, only making col- Rufus King, for respt. lections for his bank and occasion- Held, Error; That there was not ally for others. There was no pos
sufficient evidence to establish the itive evidence that he was employ- fact that the relationship of attored by plaintiffs as their attorney ney and client existed between dein the transaction in question, or fendant and plaintiffs, and that that he ever received any pay question was improperly submitted for his services as such attorney or to the jury. that he was ever employed by them It appeared that plaintiffs were in any litigation. It was proved persons of ordinary intelligence, by one of the plaintiffs that he was could read and write and had an the attorney against them in an opportunity to examine, or to have action to foreclose a mortgage. examined, the papers which passed One of the plaintiffs testified that between them and defendant; there the defendant did all the writing was no proof that any confidential between them and stated it would relationship or intimacy existed not cost plaintiffs anything and between the parties. The court that they need not carry the papers was requested to charge: “That to anyone else to show them be- there is not sufficient evidence of cause they were right; that he undue influence to justify the jury claimed to be a lawyer, which fact | in relieving the Stouts from their the witness knew and said he contracts upon that ground.” This would not rob them of a cent. The request was refused and an excepwidow of the other plaintiff, who tion taken. was present at the same time, tes- Held, Error; The fact that detified that she knew no more about fendant was engaged in a business defendant's being a lawyer than from which it may be inferred that that he claimed when he wanted he was better qualified to make so draw up the papers that he was
that he was bargains and obtain advantages by a lawyer and his writings should reason of his capacity, shrewdness not cost them anything and he and superior ability does not of could do the business. The pa- | itself lead to the conclusion that pers drawn were in the proper form. any advantage was obtained by It did not appear that defendant means of undue influence. Disoffered or gave any advice or that honest conduct of a person in the he ever received a retainer from absence of any definite and estaplaintiffs or agreed to act as their blished relation of confidence does attorney. The court was requested not furnish any valid legal ground to charge : “That there is not suffi- for setting aside a contract in an cient evidence that on June 30, 1871, action for the recovery of damages the relation of attorney and client by reason of undue and improper existed between defendant and influence exercised over the party the Stouts." This request was with whom he has been dealing. refused and an exception taken. Judgment of General Term, affirming judgment on verdict for Testimony to show that the plaintiffs, reversed and new trial liquor was sold without a license granted.
was also relevant. 93 N. Y., 639. Opinion by Miller, J.; all con- Judgment affirmed. cur; Ruger, Ch.J., and Earl, J., Opinion by Pratt, J.; Barnard, on the first ground.
P. J., concurs.
COUNTY TREASURER. PARCIVIL DAMAGE ACT. EVI
TITION. INFANTS. .
N. Y. COURT OF APPEALS.
Mills et al., respts., v. Odell et Margaret Grady, respt., v. Henry
al., applts. Prigge, applt.
Decided Jan. 20, 1885. Decided Dec., 1884.
On a sale on partition a mortgage was taken
by the referee and assigned to 0. In an action brought by a wife under the
county treasurer. In an action for misCivil Damage Act the court admitted
appropriation of the proceeds by 0. it apevidence to show a request from plaintiff peared that he held two prior mortgages to defendant not to sell liquors to her on the property, and both he and the husband; a notice to defendant that the
attorney for the plaintiff in the partition husband was in the habit of abusing suit testified that the mortgage was asplaintiff ; that defendant had previously signed to him to pay said mortgages and sold liquor to the husband, and that the
on an agreement to repay the balance to liquor was sold without a license. Held, the referee. The referee testified that No error.
nothing besides the mortgage was paid to Appeal from judgment entered
0. It also appeared that 0. did not know
that any of the parties to the partition on verdict at Circuit in favor of
suit were minors. Held, That a finding plaintiff.
that the mortgage was assigned to 0, on Action under the “Civil Damage account of the shares of the infant defendAct."
ants was not justified by the evidence,
and that the report of distribution of the Jesse Johnson, for applt.
referee not competent evidence M. J. Keogh, for respt.
against O. of the facts stated therein. Held, The act of 1873, upon
This action was brought on the which this action is based, in ex- official bond of defendant 0. as press terms authorizes the jury to Treasurer of Westchester County, give such exemplary damages as against him and his sureties, by may be proper. Therefore, the
Therefore, the plaintiffs, the heirs at law of one testimony tending to show a re- M., who had been defendants in an quest from this plaintiff to de- action for a partition of the lands fendant not to sell liquor to her of M. It appeared that under the husband; a notice to defendant judgment of partition certain of that the husband was in the habit the premises were sold to W. T. of abusing his wife, and that de- M. for $21,000, free of incumbranfendant had previously sold liquor ces. One A. assumed the purto the husband is relevant.
chase. The referee conveyed to
W. T. M. and concurrently there 49 and a mortgage for $10,000 with the latter conveyed to A., which he assigned to O., county who gave back a mortgage for treasurer, under the provisions of $10,000, which M. assigned to the the judgment. The referee testireferee in part payment of the pur-fied on the trial in substance that chase money. It was proved that 0. never received anything beyond 0. as county treasurer held a mort- the $10,000 mortgage from the gage upon the property sold for proceeds of the sale. It appeared $4,462.65, and that there was an- that 0. never saw the decree, and other mortgage thereon for $161.60, although he knew generally that which 0. had previously held, and there was an action in partition, that these mortgages were incum- he did not know that any of the brances, which by the judgment parties were minors. The trial in partition the referee was di- judge found that the $10,000 mortrected to pay out of the proceeds gage was assigned by the referee of the sale. O. and plaintiff's at- to the county treasurer under the torney in the partition suit testified provisions of the decree in partithat the $10,000 mortgage was as- tion, on account of the shares of signed to 0. to pay said two mort- the infant defendants in that gages, and upon an agreement that action. The breach of the treasthe balance should be paid to the urer's bond alleged in the comreferee. The referee says, in plaint was the conversion and misgeneral terms, that he assigned the appropriation of the proceeds of $10,000 mortgage pursuant to the the $10,000 mortgage.
it Calvin Frost and Francis Larappeared that he knew nothing of kin for applts. the actual arrangement, the whole Wilson Brown, Jr., for respts. matter being left by him to plain- Held, That the finding of the tiff's attorney. The mortgages for Court was not justified by the evi$1,462.65 and $161.60 were satisfied dence; that if the $10,000 mortof record a few days after the as- gage was taken by the county signment to O. of the $10,000 mort- treasurer for the purpose and upgage. There was no evidence that
on the agreement testified to by 0. ever received any of the pro- him and plaintiff's attorney, he ceeds of the partition sale beyond did not receive it in fact for or on the $10,000 mortgage. The ref account of the infant defendants eree's report of distribution made in the partition suit, nor will the in 1876, nearly four years after the law adjudge him so to have reassignment of the $10,000 mort- ceived it. gage, accounts for the $21,000 pur- Also held, That the referee's rechase money of the premises sold port of distribution made in 1876
not competent evidence paid to 0. $6,493.35 in satisfaction against 0. of the facts stated of the two mortgages, $216.16 for therein. taxes, and received in cash $1,292.- Judgment of General Term,
to W. T. M., by stating that he w
affirming judgment for plaintiffs, lor is living and was a witness on reversed and new trial ordered. the trial.
Opinion by Andrews, J. All S. A. Kellogg, for applt. concur.
L. Hasbrouck, for respt.
Held, That the marriage in New
Hampshire was valid there and MARRIAGE.
hence everywhere. (It was conN. Y. SUPREME COURT. GENERAL ceded that the marriage in Jan., TERM. THIRD DEPT.
1862, in Mass., was void by the
Massachusetts statute.) The New Horatio G. Roberts, applt., V.
Hampshire statute provides that The Ogdensburgh & Lake Cham- | all marriages where either party plain RR. Co., respt.
has a former wife or husband livDecided Dec., 1884.
ing, knowing such wife or husband A statute of the State of New Hampshire in
to be alive, shall if solemnized force in 1862 declared absolutely void a within the State be absolutely marriage where either party has a former void, without any decree of divorce wife or husband living, knowing such
or other legal process. We think wife or husband to be alive. Held, That the word “ former" as used in this con
the word “former" as used in this nection means a continuing relation, and statute means a continuing relathat the husband or wife must be such tion, that the husband or wife when the second marriage is solemnized,
must be such when the second and accordingly where one divorced for adultery in Massachusetts went over in. marriage is celebrated in New to New Hampshire and married that this Hampshire. Here the divorce was marriage not prohibited in New Hamp- absolute and Adaline Smith was shire was valid everywhere.
no longer the wife of Taylor in Plaintiff brought this action to
1862. The Massachusetts statute recover damages for injuries sus- forbidding the guilty party to tained by his wife born Adaline marry has no extraterritorial force. Smith. The complaint was dis- 92 N. Y., 521 ; 92 Id., 146 ; 86 Id., missed upon the ground that she 18 ; 90 Id., 602. was not his wife. Adaline in 1856, Judgment reversed. in Canada, married one Taylor. Opinion by Landon, J.; Learned, They moved to Lowell and in 1861 P.J., and Fish, J., concur. Taylor obtained a divorce from her for her adultery. In Jan., 1862,
EMINENT DOMAIN. LIMITAplaintiff and Adaline were married
TION. at Lowell, Mass. ; doubting the
N. Y. COURT OF APPEALS. validity of this marriage they in March went to Nashua, N. H., Mark, et. al., applts., v. The and were again married. In May, State, respt. 1862, plaintiff and Adaline came to Decided Jan. 20, 1895. this State and lived here as hus
A failure by the owner of property taken band and wife until her death in
for canal purposes to make claim for 1883, shortly before the trial. Tay- damages within one year as prescribed by