See CRIMINAL LAW, 3, 4, 5, 6, 9, 10, 11.
1. An answer alleged that the plaintiff, for a good and valuable considera- tion, and upon a full settlement con- cluded between it and S., relinquished and discharged any and all claims in regard to certain property, either against the defendant or any other person. Held, that the defence thus set up was by way of accord and sat- isfaction; and if the agreement was made as stated, it would be binding upon the plaintiff as a contract; whether in writing or otherwise. Pacific Mail Steamship Co. v. Irwin,
an actual computation, might be found due to the creditor.
See BOND, 1.
PROMISSORY NOTES, 8.
Of a debt.-See LIMITATIONS, Stat-
ACQUIRING LAND OR WATER. Proceedings for, by Corporations.
The defendant was, by its charter, authorized and empowered, "for the purpose of supplying the city of Utica with pure and wholesome water," to purchase, take and hold any real estate, and to enter upon any lands necessary for that pur- pose, and to take the water from any springs, ponds, streams, &c., and divert and convey the same to that city; and to lay and construct any pipes, conduits, reservoirs, &c., proper for said purpose, upon any of such lands, after having caused a survey and map of the lands to be made and filed. And in case of failure to agree with the owners of lands or water, for the purchase thereof, provision was made for the appointment of commissioners to as- certain and determine the compen- sation. The company made and filed a map, and, in 1849, took pro- ceedings for the acquisition of so much water as would flow through an aperture twelve inches in diame- ter, stating that so much water was necessary; and acquired it, having paid the damages assessed therefor. Subsequently it became necessary for the company to obtain an increased
quantity of water to supply the city, and that it should have the right to take additional water for that pur- pose. Held, 1. That in the absence of any words in the defendant's charter limiting its right to purchase or acquire lands or water, to one in- stance, or to one set of proceedings, or limiting the extent of its acquisi- tion, other than to the purposes con- templated in the charter, the power to acquire lands and water for those purposes was not spent, nor the statute exhausted, by one exercise thereof. 2. That the charter did not provide for one, only, but for successive, purchases, and successive acquisitions. 3. That the object or purpose to be attained by means of the incorporation was continuous; and the right to acquire lands by the right of eminent domain was de- 4. signed to be compulsory, to enable the company to accomplish the full purpose of its incorporation. 4. That there was no limit as to the time, or number of times, when the power could be exercised, if exercised for the purpose of effectuating the ob- ject of the defendant's incorporation. 5. That the company did not, by its proceedings, in 1849, to acquire so much water as would flow through an orifice twelve inches in diameter, exhaust the right to acquire addi- tional water; provided it had need thereof "for the purpose of supply- ing the city of Utica with pure and wholesome water." Johnson v. Utica 415 Water Works Company,
of the application of the New York Cen. &c. R. R. Company to acquire land, 426
Section 28 of the general railroad act of 1850, authorizing companies formed under that act to lay out their roads "not exceeding six rods in width," relates to the first laying out, and the first construction, of a railroad; and must be read in con- nection with § 21 of the same act, with the amendment of 1869 (chap. 237) added thereto; which amend- ment permits lands to be subse- quently taken by a company, in addition to what it was originally entitled to acquire, when laying out its road, if such additional lands shall be required for the purposes of the incorporation.
It cannot be said that the "pur- poses of its incorporation" are ac- complished when a road is con- structed, and in operation, with two tracks. The company is bound, by express enactment, to furnish to passengers and freighters the means of transferring passengers and freight in accordance with the statutory re- ib quirement.
This duty has been cast upon the company, and to accomplish it, the road must keep up with the grow- ing demands for further facilities. ib
6. The statute authorizes a road, com- ing within its terms, to acquire such lands as are necessary to its oper- ation, though when acquired and added to those already owned, the road would be more than six rods in ib width.
2. Where it satisfactorily appears, upon an application by a railroad company for leave to acquire addi- tional lands, 1. That the parties have not been able to agree upon 7. the price of the land sought; and 2. That the lands are required by the company for the purposes of its incorporation, and to enable it to suitably build embankments, and provide suitable drainage, and to keep its road in proper condition to accomplish the purposes of its in- corporation, effect should be given to the general railroad act of 1850, and the amendment of 1869, rela- tive to the acquisition of additional lands by railroad companies, when necessary; and the petitioner be al- lowed to take an order appointing commissioners of appraisal. Matter
The act must be so construed as to give effect to its provisions, and so as not to defeat the object of the legislature.
Where, upon an application by a corporation, under the general rail- road act, to acquire land for its purposes, a petition, full and com- plete in its statements, and contain- ing all the requisite averments, is presented by the applicants, the fact that owners appear and show cause, denying some of the allega- tions in the petition, and objecting to the legality of the proceedings, does not create issues which render
12. Section twenty-six of the general railroad act, which provides that if any title or interest in real estate required by any company shall be vested in any trustee not authorized to sell, release or convey, or in any infant, idiot or person of unsound mind, the Supreme Court shall have power to authorize such trustee, or the general guardian or committee, to sell and convey the same, was designed to enable the trustee, guar- dian or committee to move in order to acquire the power to contract or agree for the sale of the land; and is not compulsory upon the railroad company.
13. By statutes passed in 1867 and 1869 the bridge across the East river, between New York and Brook- lyn, was required to be completed on or before the first day of June, 1874. On the fifth day of June, 1874, four days after the expiration of the limit, the legislature passed an act provid- |
ing for the completion of the bridge, and authorizing the cities of New York and Brooklyn, by the issue of bonds, to pay moneys, during the years 1874 and 1875, towards that object. Held, that this was not only a legislative waiver of the limit pre- viously declared, but an extension of the time during which the bridge should be finished. ib
14. The provisions of the first section of said act of June, 1874, declaring that when the cities above named should accept the provisions of the third section, and when the owners of two thirds of the private stock of the bridge company should ac- cept the provisions of the second section, then and thenceforth the board of directors of the company should consist of twenty members, to be appointed, eight by the mayor and comptroller of each of said cities, &c., is not a condition precedent controlling the effect of the act as a legislative waiver of the limit, or extension of the time of perform- ance. Such waiver was absolute and unconditional.
See ESTOPPEL, 1. 2. STREETS.
One letting a horse to another, to be used, for hire, is bound to inform the hirer of the vicious propensities of the animal, if any; otherwise he will be liable for any damages which may happen to the hirer in conse- quence of a vicious act of the horse. Campbell v. Page, 113
Where the agent of the owner testified that at the time of the hiring he gave the hirer express notice of the horse's propensity to kick, and duly cautioned him on the subject, which the hirer, in his testimony, absolutely denied; held that the giv ing of notice was a question of fact, to be disposed of by the jury.
Money borrowed upon the credit of county bonds which the county was authorized by statute to issue and is legally liable to pay, becomes the property of the county the moment it reaches the hands of the county
11. The common law rule still remains in force, except as it has been changed by 114 of the Code and the act of 1862; and if the wife is interested in a cause of action not provided for by those acts, she must join her husband as a party. ib Cause of. See COMPLAINT. What actions are referable.-See REFER- ENCE, 3, 4, 5.
Motion to revive and continue.—See RE- VIVOR AND CONTINUANCE, &c. By United States.-See UNITED STATES.
See CERTIFICATE OF DEPOSIT. MARRIED WOMEN.
NEW YORK (CITY OF,) 1. PROMISSORY NOTES, 10, 11, 12.
2. S. having agreed to furnish B. with materials and labor for erecting buildings upon lots owned by B., the plaintiffs sold to S. sashes, doors and blinds for such buildings, of the value of $8,000, for which sum he filed a lien upon the buildings and lots. For the purpose of removing such lien from his property, B. exe- cuted a bond and mortgage to S., to secure the payment of $8,000 and interest; whereupon the plaintiffs discharged the lien, and the bond and mortgage were assigned to them. When the bond and mortgage were given, there was, by the terms of the contract, nothing due to S. from B. In an action to foreclose the mortgage; held, that want of con- sideration could not be set up as a defence. That it was beneficial to the mortgagor and owner of the property to have the lien upon it discharged; and that after receiving the stipulated benefit, and giving the bond and mortgage for it, he could not be exonerated from the obligation to pay what he expressly covenanted for as its price. ib
2. Construction and effect. 4. The plaintiff agreed to deliver to the defendant, at C., 200,000 hoops, at $3.50 per M. The hoops were to be well rived ash hoops, and of speci- fied dimensions. Payments were to be made from time to time, as a certain number should be delivered. The plaintiff delivered 203,100 hoops to the defendant, at C., in bundles claimed to contain 100 hoops, each. After some 30,000 of the hoops had been delivered, it was mutually agreed that the hoops should be in- spected; but no time or place, or person, when, where and by whom such inspection should be made was agreed upon. The defendant sold the hoops so bought of the plain- tiff to a salt company, and shipped those delivered, by canal, to S. that place, an agent of the salt company inspected some fifty bun- dles and found them short in num-
ber, and defective in quality, so that there were but fifty-eight merchant- able hoops in a bundle. The defen- dant then offered to return said hoops to the plaintiff, at S., provided he would pay $152, the freight charges thereon, and the advances made to the plaintiff. This offer was refused, the plaintiff saying he could not take them back, and the defendant might do as he pleased with them. The defendant's agent examined some three hundred bun- dles of said hoops, at S., including those examined by the inspector, and found that they did not contain over fifty well rived ash hoops to the bundle, the residue being worth- less. No inspection was made at C. In an action to recover the balance of the purchase price of the hoops, remaining unpaid: Held, 1. That the defendant was not entitled to damages for any deficiency in quan- tity, or defect in quality, of the hoops. 2. That the property was, by the terms of the contract, to be delivered at C., and when delivered there, it was the duty of the de- fendant to examine it, and promptly to accept or reject it. 3. That the subsequent agreement, that the hoops should be inspected, without designating any time when, place where, or person by whom, such inspection should be made, did not alter the original contract, except by relieving the defendant from in- specting at the very time of deliv- ery. 4. That as the hoops were to be delivered at C., the inspection must be held to have been intended to be made at C. 5. That unless the plaintiff assented to an inspec- tion at S., the acceptance at C., and shipment of the hoops to S. without the knowledge or assent of the plain- tiff, was such a retention of the property as amounted to an admis- sion that it was accepted in satisfac- tion of the contract. 6. That if there was not an acceptance of the hoops, so as to preclude the defen- dant from alleging and proving non-performance on the part of the plaintiff, there was no offer to return, within the principle of Read v. Ran- dall (29 N. Y., 358.) 7. That the property being deliverable and to be accepted at C., the offer to return it at S., on payment of charges, was not such an offer as the plaintiff was
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