Held also, That it was proper to allow the amendment to the plaintiff's complaint. All the policies were by their terms payable to the plaintiff, in case of loss. He was, therefore, the proper person to collect the same. The allowance was in the discretion of the Court. The amendment was in furtherance of justice and did not change the cause of action.
Motion denied and judgment ordered on the verdict.
Opinion by Boardman, J.; Learned, P. J., and Sawyer, J., concur.
had a quantity of jewelry remaining from the stock of a shop formerly conducted by herself and husband on Broadway.
Lesser and Mellville went to Second Street to buy. They examined the jewelry, but did not purchase the first day. They returned the following day, August 28, at two o'clock in the afternoon, when Mr. G. was absent, selected and purchased jewelry of the value of $255. Melville then said, "I will go and bring the money.” After a short time he returned, bringing a check, of which the following is a copy:
"NEW YORK, August 29, 1877. "No. 756. (Check stamp.)
"The Chemical National Bank of the City of New York, pay in current funds to C. H. Melville or bearer two
hundred and fifty-five ($255.00) dol
"C. H. MELVILLE."
This check he offered in payment for the goods purchased.
The complainant's sister observed and remarked that the check was dated the following day. Melville replied, "Yes, it is too late to go to the bank."
Both Melville and Lesser said to the woman that the check was good, and that Steinbach had a business. Madam Georges then took the check and delivered the jewelry to Melville and Lesser, who took it away.
Error to New York General Sessions to review the conviction of plaintiff in error upon an indictinent for obtaining goods under false pretences. Plaintiff in error was jointly in- found Steinbach had no account at dicted with one Melville.
The following facts appeared upon the trial: A woman named Zetta Georges, living at 111 Second Street,
Upon presenting the check it was
the Chemical Bank. The check was worthless. Neither Steinbach nor his business could be found.
On the trial no explanation was
offered by Lesser, his counsel resting Melville said "I will go and bring his case upon the point of law-that, the money." inasmuch as the transaction occurred on the 28th, and the check was dated the 29th, there was no false representation as to a past or existing fact, and the judge should have directed an acquittal, as the transaction was in the nature of a promise.
W. F. Kintzing, for plff. in error. B. K. Phelps, Dist Atty., for People.
And when he returned with the check, tendered it, said it was good, and that Steinbach had a business, and gave as a reason why it was postdated the following day, that it was after banking hours.
The facts of this case, fairly construed, establish a false representation in regard to an existing fact. The case of Rex v. Parker, 2 C.
Conviction affirmed and new trial
Held, All the parties understood & P., 825, fully sustains the convicthat the check was drawn upon a fund then deposited in the bank, and not to depend upon the state of an account at a future day. It was a Opinion by Ingalls, J.; Davis, P. purchase to be paid for at the time; J., concurring.
1 Imprisonment of a plaintiff does not abate the action in the State prison. The plain- tiff's rights are alone suspended by such im- prisonment. Bonnell v. The R. W. & O. RR 270
is conflicting, but there is enough to sustain the presumption arising from the gifts, the court is not at liberty to reverse the findings of a referee, that the gifts are advancements, on the ground that such findings are opposed to the weight of evidence. Id.
2 Pendency of an action in the Supreme Court against an executor or administrator to recover a legacy is a valid objection to pro- 1 To constitute an adverse possession from ceedings before the Surrogate for the same which a grant will be presumed, it must have object. Lewis et al. v. Maloney. 358 been under a claim of title exclusive of any other right, and it must have been definite, exclusive and notorious, and for a period of twenty years uninterruptedly. Robinson et al. v. Kime.
1 If the parties to an accord and satisfaction, 2 Where a life tenant conveys the premises by in settling a claim, act under a mutual mis-
take of facts, there is nothing in the nature of a quit claim deed, a claim of a fee by the the transaction which prevents a court of law grantee under such deed is a claim under a from correcting such mistake, or relieving title adverse to that of the reversioners. Chris- from its consequences, in a proper action for tie et al. v. Gage et al. that purpose. Caulkins et al. v. Griswold. 134 See DEEDS, 15.
1 Where parties have a settlement of mutual accounts and one of the parties stands in a confidential relation to the other, he is legally bound to state every item against himself, and such a settlement will be reopened for his failure to do so. So held of quasi partners in a sale of real estate. McMichael v. Kilmer. 409
See ESTOPPEL, 4; PRACTICE, 25.
1 If an agent acts without the knowledge of his principal, the latter is entitled to the bene- al. v. Frost.
See ABATEMENT, 1; BRANDS, 2; CIVIL fits to be derived from such action. Smith et DAMAGE ACT, 2.
ADULTERATING MILK. See COSTS, 9. ADVANCEMENTS.
1 Where gifts of money or property are made by a parent to a child, the presumption in gen- eral is that they are advancements. Beebe v. Estabrook et al. 149
3 Where a power of attorney to sell property by its terms fixes a limitation to the amount to be sold, a sale by the agent in excess of such amount is void, and the purchaser is chargeable with notice of the limitation. Bumstead v. Hoadley. 238
2 If the parol testimony to characterize the acts, purposes and intentions of the intestate 4 Evidence that the property was delivered
upon tickets issued for that purpose, and that all the tickets issued had been returned to the agent, is competent to show that the entire amount authorized to be sold had been de- livered. ld.
5 A principal is bound by the acts of his agent until notice of the termination of the agency is given. Barkley v. The R. & S. RR. Co. 390 6 It is a question of fact, and not of law, whether a corporation has, subsequent to its organization, ratified acts of agents done be- fore it was so organized. Chesebrough v. The N. 2d St. & M. V. RR. Co.
7 A party suing upon a contract of an agent, as if the same had been made by himself, will be held to have adopted the contract, and in the form in which the agent made it. Loomis v. Mowry et al. 456
8 Where a person signs a note, adding to his signature Agt., and the note is transferred to a purchaser for value before due, no evidence tending to show that the person to whom the note was originally given accepted the same as the obligation of the principal and in pay- ment of the principal's debt is competent. The addition of the word Agent does not vary it either way, and is mere surplusage. City Bank of Rochester v. Drake.
ANTE-NUPTIAL CONTRACT.
1 An ante-nuptial contract will not be en- forced against the wife when it appears that she has been overreached and deceived, or in- duced by false representations to enter into a contract which does not express or carry out the real intention of the parties. Pierce v. Pierce et al. 390
2 In such case every presumption is against the validity of the contract, and the burden of proof is upon the husband or his repre- sentatives to uphold it. Id.
1 Where an action is for the recovery of dis- tinct and separate items or claims, and error has been committed in respect to one or more of the claims, the General Term may reverse as to the erroneous claims and affirm as to the residue, but where the recovery sought is gen- eral damages arising from a breach of contract, it has no power to find facts and fix the amount; it can neither enlarge nor diminish the amount found by the Court below. Whitehead v. Ken- nedy. 56
2 The reasons assigned by an appellate Court for reversing a judgment form no part of the judgment of such Court and cannot be used to modify its effect. Wilson v. Palmer.
9 A broker or agent, although acting for an- other, makes himself personally liable if he contracts in his own name and without disclos-3 Where, on appeal from an order granting ing the name of his principal. Cobb v. Knapp. a new trial, the Court of Appeals renders judgment absolute against appellants, it is ob- ligatory upon the Court below to enter judg- ment in favor of respondent upon all the is- sues in the action. Id.
10 In such a case it is not sufficient that the seller may have the means of ascertaining the name of the principal. ld.
See LEASE, 4; RAILROAD COMPANIES, 7; SPECIFIC PERFORMANCE, 1; TELEGRAPH COMPANIES, 2, 3.
AGREEMENTS.
See CONTRACTS.
See DIVORCE, 6, 7, 8, 12, 13, 14.
1 Immaterial alterations of an instrument after execution do not render it void. Kinney v. Schmidt et al. 519
2 Where an instrument is signed with certain spaces left blank, it will be presumed that the parties intended to allow the party receiving same to fill up the spaces with the words which the context indicated to be proper. Id. See CONTRACTS, 23; NEGOTIABLE PAPER, 15.
See PLEADINGS; REFERENCE, 10.
9 Only the party aggrieved by an order can properly appeal therefrom. Clark v. Savage. 193
10 The Court of Appeals cannot re-examine a case and correct a remittitur upon affidavits or extrinsic evidence, making a case different from that brought up by the appeal. In re Peugnet.
222 11 Rehearings upon motions and summary ap- plications are only ordered after a reversal of an order. Id.
12 The Court of Appeals can neither direct ac- tion of the Supreme Court in advance, nor re- view its action upon an application for relief, after the exercise of its discretion.
by required to be conveyed, cannot be raised on appeal where such discrepancies are not pointed out by any exception. ld.
22 Where an appeal has been taken from the decree of a Surrogate by one of the parties to the proceeding, any party affected by or in- terested in the deeree may apply to be made a respondent. Cox, ex'r. v. Schermerhorn, ex'r. 510
23 An order of General Term giving leave to appeal where less than $500 is involved, which assigns no cause for so doing, is insufficient, and the appeal should be dismissed. Bastable v. City of Syracuse.
24 A reference in the points of counsel to the opinion of the Court below as reported, is not a substitute for a compliance with the rule re- quiring such opinion to be printed with the ld.
13 Where a party to an appeal has died before the Code of Civil Procedure went into effect, an application for the order to show cause provided for in § 1298, made before the expira-papers in the case.
tion of three months from the time such sec- tion took effect, is premature. Brokaw et al. v. Brokaw. 267
14 Where a defendant, in an action to foreclose a mortgage, claims a prior lien under a judg- | ment lien on which less than three hundred dollars is due, an adjudication upon such claim is not appealable to the Court of Ap- peals without an order of the Supreme Court. Petrie et al. v. Adams.
15 An order denying an application for an order directing the receiver of an insurance com- pany to prefer matured claims for death losses over the claims of existing policy-holders does not affect a substantial right, and is not ap- pealable. In re Miller v. Wickham, rec'r. 311 16 A dismissal of an appeal for want of prose- cution, made by the Commission of Appeals in 1874, will not be vacated where the appellant is shown to have been guilty of laches in pro- curing an attorney to prosecute it. McEwan v. The Erie R. Co. 344
17 An appeal regularly dismissed cannot be re- instated in the Court of Appeals where the re- mittitur has been sent down and judgment entered thereon. Application should be made in the Supreme Court to vacate the proceed- ings there and for a return of the remittitur. Jones v. Anderson.
25 An order vacating an order of reference and changing place of trial is appealable to the General Term. Hoffman et al. v. Sparling.
26 An order settling issues to be tried by a jury in an equity case is not appealable. Seymour v. McKinstry et al.
27 Exceptions to a referee's report must be filed and served before the same can be as- sailed on an appeal, and likewise an order can- not be attacked in an Appellate Court unless an appeal therefrom has been duly taken. Bearup v. Carraher.
28 An order of Special Term requiring defen- dant to show cause why an attachment for contempt should not issue against him, and an order of General Term vacating or continuing such order, are discretionary and not appeal- able to the Court of Appeals. The 6th Av. RR. Co. v. The Gibert Elevated RR. Co. 569
See APPEAL TO COUNTY COURT, 3; BANK- RUPTCY, 12; CRIMINAL PRACTICE AND PLEAD- ING, 4, 5; EVIDENCE, 15; PARTNERSHIP, 7; PRACTICE, 2, 36; RAILROAD COMPANIES, 14; REPLEVIN, 7; SURETYSHIP, 2; SURRO- GATES, 3.
1 Where, upon appeal to a County Court, the 18 On an appeal to the Court of Appeals from a judgment of General Term, reversing a judg-plaintiff's claims, for which judgment is de-
ment granting a peremptory mandamus, the respondents may urge any consideration which they might have offered at General Term, and if it appears sufficient, it will uphold such judgment. The People ex rel. Wetherbee v. Supervisors of Essex Co. 346 19 Section 1303 of the Code of Civil Procedure does not apply to appeals from Justices' Courts. Roberts v. Davids et al. 370
20 Where no objection has been made to the complaint on the trial, none can be entertained on appeal. Wilson v. Van Pelt. 501
21 An objection to a judgment on account of discrepancies in the description of lands there
manded, exceed $50, such claims determine the right of the parties to a re-trial on the ap- 151 peal. Hayes et al. v. Kedzie.
2 Where a foreign corporation is sued in Jus- tice's Court, and appeals to the County Court for the purpose of having a new trial, the ap- peal gives the Court jurisdiction over the sub- ject-matter of the action, and the voluntary appearance of defendant, by its attorney, jurisdiction over its person. Burton v. The Wheeler & Wilson Mfg. Co.
3 A subsequent appeal by defendant to the Supreme Court brings up for review the trial in the County Court only. To bring up the proceedings in the Justice's Court, the appeal
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