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tract, on his part, he would be enti in the complaint, and admits of evitled to the consideration promised, dence tending to establish such deto wit, the wool; but that a part fense. Evans v. Williams, 346 performance, only, gave no title; and the defendant took, by his levy, no 2. If a cause of action has once acother or better title than H. had. crued or existed, and has been satHeld, also, that the title to the sheep isfied, or defeated, by reason of was in the plaintiff. Hasbrouck v. something which has accrued subseBouton,

413 quently, that is new matter, which

must be pleaded, in order to reuder 16. Upon a sale of hides by the plain it competent as evidence.

ib tiffs to the defendant, through a broker, the bought and solil note was 3. Where, in an action upon a promisas follows: “New York, Feb. 19, sory note, tried in a justice's court, 1859. Sold for account of D. G. and the defendant, under an answer of W. B. Bacon, to Mr. W. W. Gilman, denial and payment, offered to prove 4045 Singapore and Penang Cow that the debt on which the note was Hides, per Samuel Appleton. No founded had been paid to the credallowance except for sea damaged. itor, before the making of the note Price 12 cents per pound, cash.” in suit; Held that under the rule for Held, that the contract was for the the liberal interpretation of pleadpurchase of all the hides, at the price ings in justices' courts, the answer of 12 cents per pound, subject to a was sufficient to authorize the addeduction from the price, at the usual mission of the evidence offered, even and fair rate, for any of the hides if an answer setting up new matter that were sea damaged. Bacon v. were necessary.

ib Gilman,

640

See Equity, 1, 2. 17. And that the title to the whole pass

GENERAL ISSUE. ed to the purchasers; and the right of the vendors, to sue for the price, followed immediately upon the deliv

APPEAL. ery of the goods.

ib

1. An appeal does not lie from a judg. See FORECLOSURE SUIT, 2.

ment entered upon an award of arFRAUD.

bitrators, solely on a case containing TENANTS IN COMMON, 1, 2.

the testimony taken before the arbiVENDOR AND PURCHASER, 4, 6. trators, and a copy of the judgment

roll. Dibble v. Camp,

150

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ARREST.

See JUDGMENT, 6 to 11.

MENACES.
PROMISSORY Notes, 1.

3. The objection, to an assessment,

that the kind of pavement selected by the common council was patented, and therefore not open to conpetition, is equally unavailable.

4. A charge for collection, if it exceeds ASSAULT AND BATTERY. the two and a half per cent allowei

by law, is erroneous, but not fatal 1. While it is well settled that in an

to the assessment. The excess may action for assault and battery, evi be deducied, under the act of 1870. dence of acts doue or words spoken by the plaintiti' long before the cause of action arose, is inadmissible for 5. The acts of the assessors, while in the purpose of showing provocation

the lawful discharge of their duly, and mitigating the damages, yet when

cannot be reviewed by proceedings such acts or words are a portion of a

under the act of 1858, alihough the series of provocations frequently re

assessors were governed, in their depeated, and continued down to the

liberations, by an erroneous principle. time of the assault, they may be proved. Stetlar v. Vellis,

524

6. Such an error will not constitute a

legal irregularity, within the mean2. Accordingly held that evidence of

ing of that act. the speaking and uttering, by the plaintiff, at various times before the 7. It was the intention of the legislaassault complained of, of the same

ture, by the act of 1813, (Valentine's slanderous and insulting words in

Laws, p. 1252, \ 178,) to make the reference to the defendant, and with

confirmation of the report of comin his hearing, which were alleged missioners of estimate and assessto have been spoken at the time the

ment when lands are taken for a assault was committed, was admis

park, &c., as they have declared it to sible.

ib

be, final and conclusive in reference to their proceedings, as between the

commonalty of New York, and all ASSESSMENTS.

persons whomsoever, in reference to

the land taken, and the estimate and 1. Although the omission to advertise assessment made and imposed. Met.

for bids or sealed proposals for ter of the Coinmissioners of the Central cross-walks to be laid or relaid, when Park,

132 such cross-walks are embraced in the resolution of the common council 8. All persons are thus advised that, for paving an avenue, is a legal ir being given the opportunity to be regularity, under the act of 1858, heard, they must appear, and by ob(Laws of 1858, ch. 338,) yet under jection either made before the comthe provisions of section 27 of the missioners or submitted to the Suact of 1870, chapter 383, it is not preme Court, protect whatever rights necessarily fatal to the assessment; are invaded or jeopardized. as the assessment may be modified, by deducting therefrom the 9. The object of notice of publication amount of the unlawful increase.

would be defeated if the abstract Matter of McCormack,

128

of the awards of the commissioners

could not be altered ; and although 2. The objection that, in paving an av an award is made to a particular in

enue, the space between the rails of dividual, in the first instance, he will a railroad company was not paved, not be justified in relying upor: the relates to an omission of which entry of such award, and the abproperty owners cannot complain; stract of the report. It is his duty to since by such omission their burden see, if he means to rely upon the reis lessened. It is not a legal irreg port as originally prepared, that it ularity, within the meaning or spirit is not, at the instance of any subseof the act of 1858, and fatal to the quent claimant having even an appaassessment.

ib rent title, altered to his prejudice, it

10. The alteration or correction may ing the amount upon each lot, if

be made, according to the statute, necessary; although it would be at any time before the report is pre better to assess each lot by itself. ib sented to the court, after publication.

ib 17. When objections are made by a

person assessed, to an assessment 11. Although the report of the com for a local improvement in the city

missioners, when confirmed, is final of New York, and are disallowed and conclusive, in regard to the esti by the assessors, it is the duty of the mates and awards, it is not conclu assessors to present such objections, sive upon the rights of claimants with the assessment, to the board inter sese. The statute allows an ac of revision, for the purpose of ention to be brought against the per abling that board to correct the son to whom the award is made, errors, if any, of the assessors. Matafter payment thereof to him, by ter of Dunning,

377 the person to whom of right the money paid belongs, notwithstand- 18. And an omission by the assessors ing the report.

ib to submit such objections to the

board of revision is an “irregular12. Hence, an application by such ity” in “ the proceedings relative to

rightful owner to set aside the order an assessment," within the meaning confirming the report will be denied, of the statute of 1858, in relation to upon the grounds that the confirma

" frauds

assessments for local imtion of the report is final, conclu provements in the city of New York,” sive, and an end of the proceeding; (Laws of 1858, ch. 338, \ 1,) which that the commissioners are functi authorizes an application to a judge officio; and that the court has not of this court, to vacate the assessthe power to alter the report, or ment.

ib send it back to the commissioners, for correction,

ib See CONSTITUTIONAL LAW, 1. 2, 3.

CORPORATIONS. 13. Where an ordinance of the com MUNICIPAL CORPORATIONS, 2, 3, 4,

mon council of the city of New York directed an avenue to be curbed and guttered, and the sidewalks to be

ASSIGNMENT. flagged, without directing that new flaguing should be used; Held that For benefit of creditors. See VENDOR it was no objection to the assess

AND PURCHASER, 6. ment that a part of the old flagging was relaid, and the old curb reset, the expense of the labor, only, be

ASSOCIATIONS. ing charged. Matter of Anderson, 375 14. Nor is it an objection to the assess

See BENEVOLENT SOCIETIES. ment that the lots are charged for the work done opposite each lot, while the expenses are charged on

ATTACHMENT. all the property, per foot, equally. ib

See JUDGMENT, 3. 15. Although the street directly in

front of a lot may not require much expense to bring it to the grade,

AVENUES. still the lot may be very much benefited by the grading beyond it; and See AssessMENTS, 1, 2, 8, 13, 14. the assessors are to judge of the extent of such benefit. Per INGRA

ib

B 16. The objection that more than one

lot, owned by the same person, is included in one assessment, is not a

BAIL. valid ground for vacating the same; provision being made for apportion See CRIMINAL LAW, 1, 2.

HAM, J.

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BENEVOLENT SOCIETIES.

1. The cases of Bunn v. Vaughan, (3

Keyes, 345;) kane v. Gott, (24 Wind. 1. The consent and approbation of a 611,) and Sarage v. Burnham, (17 justice of the Supreme Court re

N. Y. 561,) commented on, and disquired by the act of April 12, 1818,

tinguished.
Curtis v. Smith,

9 " for the incorporation of benevolent, charitable, &c., societies," to the certificate of organization of a

2. The case of Nichols v. Michaels, (23 society under that act, although

N. Y. 264,) although it holds that necessary, like the acknowledgment

as to the vendee, upon whom a fraud before a commissioner, is not con

has been committed, the sale is veidclusive upon the Secretary of Stale,

able at his option, does not sustain nor upon the court, upon the ques

the position that fraud in the sale tion whether the association, as its

renders the sale only voidable as to

the rendor, of whom the property objects are stated in the certificate, is within the authority and meaning

was fraudulently purchased. Josis

48 of the statute. The People, ex rel.

v. Couree, Blossom v. Nelson,

159

3. The case of Schaffner v. Reuter, (37 2. An association formed under that act,

Barb. 44,) commented on and disto provide a " relief fund,” and “to

tinguished. Briggs v. Mitchell, 288 aid persons of moderate pecuniary resources in obtaining from a re- 4. Osgood v. Laytin (5 Abb. N. S. 1) spectable insurance company insur being a decision on the statute of ance on their lives, and in maintain this State, has no application to a

creditor's suit brought to reach the COMMISSIONERS OF HIGHWAYS. assets of a foreign corporation. Bartlett v. Drew,

648

See HighwAYS, 1, 2, 3, 4, 5.

CERTIORARI.

COMMON SCHOOLS.
See CRIMINAL LAW, 3.

1. The expenses of actions commenced

or defended by the trustees of a school district, without a previous

resolution of the district, and for CHARITABLE SOCIETIES.

which expenses, notwithstanding the

want of a previous resolution, an See BENEVOLENT Societies,

assessment may be made upon the district by a vote of the inhabitants

at a district meeting, or on appeal CHATTEL MORTGAGE.

from their retusal, to the county judge, under sections 9 and 10 of

title 13 of the act of 1864, " to re1. Where a chattel mortgage contain

vise and consolidate the general acts ed a power to the mortgagee, in case of default in payment, to take

relating to public instruction," do

not embrace penalties, which are expossession of the property, and sell

pressly excluded from the operation the same, and after deducting all

of section 8. The People ex rel. Gilexpenses, to apply the proceeds in

patrick v. Hatch,

228 payment of the debt; and in case he should at any time deem himself 2. It is only cases arising under secunsate, that he might take possess

tion 8, which the county judge may ion of the property and sell the

review on appeal taken and heard as same at public or private sale, before

provided in sections 9 and 10. ib the day of payment; Held that on default' in payment at the day, the 3. Hence an appeal does not lie to the mortgagee might sell the property

county judge from the refusal of a at private sale, without notice to the

school district meeting to vote a tax mortgagor; and that if the sale was

to reimburse a trustee for the costs fair and bona fide, the right of the

and expenses of an action brought mortgagor to redeem was foreclosed. Ballou v. Cunningham,

by him, against a pupil, to recover 425

the penalty imposed by the 31 sec

tion of said title, for disturbing the 2. Held, also, that under such circum school.

ib stances, the mortgagee did not, by selling the property at private sale, render himself liable to account to

COMPLAINT. the mortgagor for its full value; nor could the latter be allowed to prove 1. The addition of the words "the

commissioners of the board of ex. the value of the property, for the

cise of pinpose of recovering the difference

county" to the names between that sum and the amount

of the plaintitfs in the title of a realized from the sale. MULLIN, P.J.

cause, without anything else, is in dissented.

ib

law a mere description of the persons, and indicates that the action is

the private action of the plaintiffs. CLOUD UPON THE TITLE.

Bonesteel v. Garlinghouse, 338

2. In a bill to redeem, an offer to pay A party cannot maintain an action to

whatever may be found due upon remove a cloud from the title to

the mortgage, or a tender of the land in which he has no interest,

amount which the plaintiff concedes upon the sole ground that he has

to be due, are indispensable. Withwarranted the title. He can only be

out one or the other of these, the called upon, on his covenant of war

coinplaint does not set forth a cause ranty, where there has been an evic

of action.

Silsbee v.

Smith, 372 tion under valid and paramount title. Bissell v. Kellogg,

617 See PhysicIANS AND SURGEONS, 7.

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