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and answered as manager by a general denial.

D. F. & H. Gedney, for applt. Eugene D. Slokem, for respt. Held, That it is plain that the pleader intended to sue defendant as a joint stock association although he has not named the President or Treasuerr or the individuals composing it.

By a general appearance defendant could waive the objection that the President or Treasurer was not named, but it was incumbent on plaintiff to prove the existence of such association by competent evidence, which was not done. 14 How., 256. A general denial put this question in issue. 14 Hun., 256.

It was not necessary for defendant to put in a verified answer alleging that it was not a corporation, as required by § 1776 of the Code, inasmuch as that was no allegation in the complaint that defendant was a corporation.

There is nothing in the case to show who or what is made a party defendant. Neither does the case show any service of process upon any officer of any corporation or association competent to receive a summons in an action against such defendant. It does not follow that because plaintiff did not name a President or Treasurer of the association he must have sued defendant as a corporation.

However, it does not affect the merits of the action, which are all with plaintiff, whether defendant was sued as a corporation or a joint stock association, inasmuch as it appears that there was an ap

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N. Y. COURT OF APPEALS. Stout et. al., respts., v. Smith, applt.

Decided Jan. 20, 1885.

Dishonest conduct of a person, in the absence of any definite and established relation of confidence, does not furnish any valid legal ground for setting aside a contract in an action to recover damages by reason of undue and improper influence exercised over the party with whom he has been dealing.

In an action for damages for fraud in exchanging lands it appears that defendant, who was an attorney and also a banker, drew all the papers. It did not appear, that he was ever employed by plaintiffs in any litigation or received a retainer from them or agreed to act as their attorney. Held, insufficient to establish the relationship of attorney and client between them.

This action was brought to recover damages for fraud arising out of various transactions in the exchanging or sale of farms between plaintiffs and defendant. It was claimed that the relation of attorney and client existed between defendant and plaintiffs. peared that defendent was an attorney at law, but that his principal business was that of a banker

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and that he did not practice law to any great extent, only making collections for his bank and occasionally for others. There was no positive evidence that he was employed by plaintiffs as their attorney in the transaction in question, or that he ever received any pay for his services as such attorney or that he was ever employed by them in any litigation. It was proved by one of the plaintiffs that he was the attorney against them in an action to foreclose a mortgage. One of the plaintiffs testified that the defendant did all the writing between them and stated it would not cost plaintiffs anything and that they need not carry the papers to anyone else to show them because they were right; that he claimed to be a lawyer, which fact the witness knew and said he would not rob them of a cent. The widow of the other plaintiff, who was present at the same time, testified that she knew no more about defendant's being a lawyer than that he claimed when he wanted so draw up the papers that he was a lawyer and his writings should not cost them anything and he could do the business. The papers drawn were in the proper form. It did not appear that defendant offered or gave any advice or that he ever received a retainer from plaintiffs or agreed to act as their attorney. The court was requested to charge: "That there is not sufficient evidence that on June 30, 1871, the relation of attorney and client existed between defendant and the Stouts." This request was refused and an exception taken.

David B. Hill, for applts.

Rufus King, for respt.

Held, Error; That there was not sufficient evidence to establish the fact that the relationship of attorney and client existed between defendant and plaintiffs, and that question was improperly submitted to the jury.

It appeared that plaintiffs were persons of ordinary intelligence, could read and write and had an opportunity to examine, or to have examined, the papers which passed between them and defendant; there was no proof that any confidential relationship or intimacy existed between the parties. The court was requested to charge: "That there is not sufficient evidence of undue influence to justify the jury in relieving the Stouts from their contracts upon that ground.” This request was refused and an exception taken.

Held, Error; The fact that defendant was engaged in a business from which it may be inferred that he was better qualified to make bargains and obtain advantages by reason of his capacity, shrewdness and superior ability does not of itself lead to the conclusion that any advantage was obtained by means of undue influence. Dishonest conduct of a person in the absence of any definite and established relation of confidence does not furnish any valid legal ground for setting aside a contract in an action for the recovery of damages by reason of undue and improper influence exercised over the party with whom he has been dealing.

Judgment of General Term, af

firming judgment on verdict for plaintiffs, reversed and new trial granted.

Opinion by Miller, J.; all concur; Ruger, Ch. J., and Earl, J., on the first ground.

CIVIL DAMAGE ACT. EVIDENCE.

N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

Margaret Grady, respt., v. Henry Prigge, applt.

Decided Dec., 1884.

In an action brought by a wife under the Civil Damage Act the court admitted evidence to show a request from plaintiff to defendant not to sell liquors to her husband; a notice to defendant that the husband was in the habit of abusing plaintiff; that defendant had previously sold liquor to the husband, and that the liquor was sold without a license. Held, No error.

Appeal from judgment entered on verdict at Circuit in favor of plaintiff.

Action under the "Civil Damage Act."

Jesse Johnson, for applt.
M. J. Keogh, for respt.

Held, The act of 1873, upon which this action is based, in express terms authorizes the jury to give such exemplary damages as may be proper. Therefore, the testimony tending to show a request from this plaintiff to defendant not to sell liquor to her husband; a notice to defendant that the husband was in the habit of abusing his wife, and that defendant had previously sold liquor to the husband is relevant.

Testimony to show that the liquor was sold without a license was also relevant. 95 N. Y., 632. Judgment affirmed. Opinion by Pratt, J.; Barnard, P. J., concurs.

COUNTY TREASURER. PARTITION. INFANTS.

N. Y. COURT OF APPEALS. Mills et al., respts., v. Odell et al., applts.

Decided Jan. 20, 1885.

On a sale on partition a mortgage was taken by the referee and assigned to O. as county treasurer. In an action for misappropriation of the proceeds by O. it appeared that he held two prior mortgages on the property, and both he and the attorney for the plaintiff in the partition suit testified that the mortgage was assigned to him to pay said mortgages and on an agreement to repay the balance to the referee. The referee testified that nothing besides the mortgage was paid to O. It also appeared that O. did not know that any of the parties to the partition suit were minors. Held, That a finding that the mortgage was assigned to O, on account of the shares of the infant defendants was not justified by the evidence, and that the report of distribution of the referee was not competent evidence against O. of the facts stated therein.

This action was brought on the official bond of defendant O. as Treasurer of Westchester County, against him and his sureties, by plaintiffs, the heirs at law of one M., who had been defendants in an action for a partition of the lands of M. It appeared that under the judgment of partition certain of the premises were sold to W. T. M. for $21,000, free of incumbrances. One A. assumed the purchase. The referee conveyed to

W. T. M. and concurrently therewith the latter conveyed to A., who gave back a mortgage for $10,000, which M. assigned to the referee in part payment of the purchase money. It was proved that O. as county treasurer held a mortgage upon the property sold for $4,462.65, and that there was another mortgage thereon for $461.60, which O. had previously held, and that these mortgages were incumbrances, which by the judgment in partition the referee was directed to pay out of the proceeds of the sale. O. and plaintiff's attorney in the partition suit testified that the $10,000 mortgage was assigned to O. to pay said two mortgages, and upon an agreement that the balance should be paid to the referee. The referee says, in general terms, that he assigned the $10,000 mortgage pursuant to the direction of the judgment, but it appeared that he knew nothing of the actual arrangement, the whole matter being left by him to plaintiff's attorney. The mortgages for $4,462.65 and $461.60 were satisfied of record a few days after the assignment to O. of the $10,000 mortgage. There was no evidence that O. ever received any of the proceeds of the partition sale beyond the $10,000 mortgage. The referee's report of distribution made in 1876, nearly four years after the assignment of the $10,000 mortgage, accounts for the $21,000 purchase money of the premises sold to W. T. M., by stating that he paid to O. $6,493.35 in satisfaction of the two mortgages, $216.16 for taxes, and received in cash $4,292.

49 and a mortgage for $10,000 which he assigned to O., county treasurer, under the provisions of the judgment. the judgment. The referee testified on the trial in substance that O. never received anything beyond the $10,000 mortgage from the proceeds of the sale. It appeared that O. never saw the decree, and although he knew generally that there was an action in partition, he did not know that any of the parties were minors. The trial judge found that the $10,000 mortgage was assigned by the referee to the county treasurer under the provisions of the decree in partition, on account of the shares of the infant defendants in that action. The breach of the treasurer's bond alleged in the complaint was the conversion and misappropriation of the proceeds of the $10,000 mortgage.

Calvin Frost and Francis Larkin for applts.

Wilson Brown, Jr., for respts.

Held, That the finding of the Court was not justified by the evidence; that if the $10,000 mortgage was taken by the county treasurer for the purpose and upon the agreement testified to by him and plaintiff's attorney, he did not receive it in fact for or on account of the infant defendants in the partition suit, nor will the law adjudge him so to have received it.

Also held, That the referee's report of distribution made in 1876 was not competent evidence against O. of the facts stated therein.

Judgment of General Term,

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A statute of the State of New Hampshire in force in 1862 declared absolutely void a marriage where either party has a former wife or husband living, knowing such wife or husband to be alive. Held, That the word former" as used in this connection means a continuing relation, and that the husband or wife must be such when the second marriage is solemnized, and accordingly where one divorced for adultery in Massachusetts went over into New Hampshire and married that this marriage not prohibited in New Hampshire was valid everywhere.

Plaintiff brought this action to recover damages for injuries sustained by his wife born Adaline Smith. The complaint was dismissed upon the ground that she was not his wife. Adaline in 1856, in Canada, married one Taylor. They moved to Lowell and in 1861 Taylor obtained a divorce from her for her adultery. In Jan., 1862, plaintiff and Adaline were married at Lowell, Mass.; doubting the validity of this marriage they in March went to Nashua, N. H., and were again married. In May, 1862, plaintiff and Adaline came to this State and lived here as husband and wife until her death in 1883, shortly before the trial. Tay

lor is living and was a witness on the trial.

S. A. Kellogg, for applt.
L. Hasbrouck, for respt.

Held, That the marriage in New Hampshire was valid there and hence everywhere. (It was conceded that the marriage in Jan., 1862, in Mass., was void by the Massachusetts statute.) The New Hampshire statute provides that all marriages where either party has a former wife or husband living, knowing such wife or husband to be alive, shall if solemnized within the State be absolutely void, without any decree of divorce or other legal process. We think the word "former" as used in this statute means a continuing relation, that the husband or wife must be such when the second marriage is celebrated in New Hampshire. Here the divorce was absolute and Adaline Smith was no longer the wife of Taylor in 1862. The Massachusetts statute forbidding the guilty party to marry has no extraterritorial force. 92 N. Y., 521; 92 Id., 146; 86 Id., 18: 90 Id., 602.

Judgment reversed.

Opinion by Landon, J.; Learned, P.J., and Fish, J., concur.

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EMINENT DOMAIN. LIMITATION.

N. Y. COURT OF APPEALS. Mark, et. al., applts., v. The State, respt.

Decided Jan. 20, 1885.

A failure by the owner of property taken for canal purposes to make claim for damages within one year as prescribed by

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