Anderson v. Sherwood.

bought; I told defendant I would have the wheat or something equivalent to the wheat; I then drove off."

It was proved by other witnesses that at the time the defendant refused to let the plaintiff have the wheat, it was worth about $2.50 per bushel, and that it was then in the defendant's barn.

It seems to me that the only question in the case, upon this evidence, is whether the plaintiff ought also to have shown either a tender of the purchase price of the wheat, or that he was ready to pay it, when he made the demand.

As a general rule, the purchaser must do so; especially where there is a mere failure to perform, on the part of the vendor; as where he is not present at the time or place for delivery; but in this case the defendant refused to deliver when it was demanded of him; and I think in such case the plaintiff was not bound to tender, or offer the money to him.

Such is the rule as laid down by this court in Crist v. Armour, (34 Barb. 378,) in a case where the vendor, prior to the time for delivery, gave the vendee notice that he should not perform the contract. And upon the same principle, if he, at the time for performance, refuses to perform upon other grounds than non-performance on the part of the purchaser, it dispenses with any further performance on his part.

I think the judgment should be affirmed.

Judgment affirmed.

[ONONDAGA GENERAL TERM, April 8, 1866. Bacon, Foster and Mullin, Justices.]

BERRY vs. HEMINGWAY and others.

It is no defense to an action brought by a constable upon an agreement by the plaintiffs in an execution, to indemnify him against the costs of a suit brought by him against a deputy sheriff for levying upon and selling property which the constable had previously levied on, that when the defendants agreed to indemnify the plaintiff they did not know that he had levied other executions upon the same property levied upon by virtue of theirs.

A

PPEAL by the defendants from a judgment for the plaintiff, rendered at a circuit court, upon a verdict.

L. H. and F. Hiscock, for the appellants.

Geo. W. Gray, for the respondent.

By the Court, FOSTER, J. The plaintiff was a constable, and had an execution in favor of the defendants, against Mansfield and Fitch, which was issued out of a justice's court. He also, on the same day, received two other justice's executions against the same defendants, in favor of other plaintiffs, and he levied upon property sufficient in value to satisfy them all; and in about a week thereafter another execution against the same defendants came to his hands, which he also levied upon the same property. In a few days thereafter a deputy sheriff, who had also levied upon the same property, sold it, and at the instance. of the defendants, a suit was brought by him against the sheriff, in a justice's court, the defendants agreeing to indemnify and save him harmless. The plaintiffs in the other executions did not indemnify the plaintiff, and the defendants did not know that the plaintiff had any executions levied upon the property, except the one in their favor.

The plaintiff recovered a judgment against the sheriff, in the justice's court, from which the sheriff appealed, of which the plaintiff informed the defendants. The county court affirmed the judgment of the justice, and the sheriff

Berry v. Hemingway.

then appealed to this court, of which the plaintiff also informed the defendants, and they told him to go on with the suit; that they were able to pay the costs, and would settle with him in the end.

This court reversed the judgment rendered by the county court and by the justice, and gave judgment against the plaintiff, which he paid, amounting, together with his own costs, to $112.35; to recover which, and interest, he brought this suit, and the jury rendered a verdict for the plaintiff for that sum, together with the interest thereon.

The defendants moved for a nonsuit, on the ground that when they agreed to indemnify the plaintiff, they did not know that he had levied the other executions upon the same property levied on by virtue of theirs, and that therefore their indemnity was void. The court denied the motion, and the defendants' counsel excepted.

I think the judge was right. I am not aware of any adjudged case which sustains the proposition contended for on the part of the defendants; and the case of Chamberlain v. Beller (18 N. Y. Rep. 115, 119,) is in principle like the case under consideration. It was held in that case, where the sheriff (who had received a bond of indemnity from the defendants) had been put to costs in the successful defense of an action brought against him by a claimant of the goods attached, that he was entitled to recover the whole amount upon the bond, and not merely a proportional share, though other creditors, who did not indemnify him, received the surplus of the proceeds of the goods attached, after satisfying the indemnifying creditor. The judgment should be affirmed.

Judgment affirmed.

[ONONDAGA GENERAL TERM, April 8, 1866. Bacon, Foster and Mullin, Justices.]

JOSEPH J. BRADLEY, WILLIAM PARSHALL, FRANCIS N. SEARLE and GILES EVERSON, plaintiffs in error, v8. THE PEOPLE, defendants in error.

The careless or negligent keeping of gunpowder in large quantities, near dwelling-houses, or where the lives of persons are thereby endangered, is a nuisance at common law.

On the trial of an indictment for erecting and maintaining a powder-house, and for keeping therein a large quantity of powder, near a city, a witness who had been in the infantry and artillery service of the United States for three years, was asked, "What is the ordinary mode of constructing powder magazines ?" The question was objected to, by the accused, as incompetent and irrelevant, and not the proper manner of proving that the building in question was improperly constructed. The objection was overruled, and the witness proceeded to state how powder magazines were constructed. Held that the testimony was incompetent. MULLIN, J., dissented.

TRIT of error to review the proceedings in the court

WRIT

of sessions of Onondaga county, in which the plaintiffs in error were indicted and convicted of a nuisance.

They were indicted for erecting and maintaining a powder-house, and for keeping therein a large quantity of powder, near the city of Syracuse, to which they pleaded not guilty, and the indictment was tried at a court of sessions in said county, in November, 1865, and the defendants were found guilty.

.

It appeared on the trial that in June, 1865, the defendants, Bradley and others, erected the powder-house in question, of wood, and set it upon posts, the tops of which, on the east side, were five feet from the ground, and an open space was left between the floor and ground. It was located eleven rods north of the highway leading from Syracuse to Geddes, along which hundreds of persons were daily passing. The building was 26 feet long and 16 feet wide; the sides were of pine boards, and the roof was covered with cement. On the west side of it, at a distance of twelve rods, was a sand bed from which sand was taken daily, and the men engaged there were accustomed to smoke, and children were in the habit of playing around

Bradley v. The People.

the powder-house; and the defendants kept stored therein between one and two tons of powder. The powder-house was owned by three different firms, and each had access to it. Six or seven dwelling-houses were situated within seventy rods of it, one of them being within twenty-eight rods, and were so located at the time it was erected. The side of the powder-house below the floor, on the east, was left open until after the indictment was found, and persons were observed to go under the building for protection from the rain, and at one time a man was seen smoking there.

The plaintiffs in error claim that the judgment should be reversed, on the ground that the verdict was against evidence, and because improper testimony was admitted, against their objection.

William J. Wallace, for the plaintiffs in error.

Wm. H. Gifford, (district-attorney,) and Charles Andrews, for the defendant in error.

FOSTER, J. Upon the proofs I think the jury were well warranted in finding the defendants guilty; and I consider the cases of The People v. Sands, (1 John. 78,) and Myers v. Malcolm, (6 Hill, 292,) authorities in support of the proposition that the careless or negligent keeping of gunpowder in large quantities near dwellinghouses, or where the lives of persons are thereby endangered, is a nuisance at common law. In The People v. Sands, the motion was in arrest of judgment, for the reason that the indictment did not charge any carelessness or negligence in the defendant; but merely that he kept a large quantity of gunpowder in a house near dwellinghouses; and while the court held that the indictment was insufficient, and for that cause arrested the judgment, all the judges discussed the question involved in the present