EMINENT DOMAIN - Continued.
proceeding under chapter 23 of title 1 of the Code of Civil Procedure, for
the condemnation of real property, before the entry of the final order or
judgment. (Code Civ. Pro. §§ 1356, 3334.)
MATTER OF BROADWAY AND SEVENTH AVENUE R. R. Co........... 275
2. Defective notice of the presentation of the petition.] Objections raised
to the sufficiency of the notice of the presentation of the petition in such a
proceeding for condemnation are not waived by the mere fact that a demurrer
to the petition is subsequently interposed.
The statement in a notice annexed to a petition for the condemnation of
real property situated in the city of New York, that the petition will be pre-
sented to the Special Term of the Supreme Court of New York," is not a
compliance with the provision of section 3361 of the Code of Civil Procedure,
which requires a notice of the place at which the petition will be pre-
sented to a Special Term of the Supreme Court held in the judicial district
where the property is situated, and jurisdiction is not acquired under such
a defective notice. Id.
EMPLOYER AND EMPLOYEE:
See MASTER AND SERVANT.
EQUITY — Specific performance of a partly executed agreement concerning
lands, not in writing.] 1. Courts of equity will enforce the specific perform-
ance of a contract concerning lands, although it is not in writing, when it has
been performed on one side and when otherwise one party would be enabled
to commit a fraud upon the other.
A complaint alleged that the owner of certain real estate left, at his death,
seven children, sons and daughters, surviving him, who then became tenants
in common of the real estate; one of the sons married and had a son, the
plaintiff; none of the other children married; all the children, on reaching
majority, entered into an agreement that the property should be held in com-
mon for the joint use of all, as from time to time they might be living, and
that on the decease of any of them, his or her interest was to vest in the sur-
vivors, until the title was concentrated in the last survivor, on whose death it
should pass to the plaintiff; this agreement was respected by the brothers
and sisters, and by deeds and wills they conveyed and devised their interests
to each other, until all had died but one sister. The complaint further alleged
that this sister, who was made a defendant, was old and feeble, and had been
induced by the other defendants to convey the property to them without con-
sideration, and prayed for the establishment of the said trust agreement and
for the setting aside of the conveyances made by the defendant, the survivor,
to the other defendants, and for an accounting.
The defendants demurred to the complaint on the ground that it did not
state facts sufficient to constitute a cause of action, and claimed that the
alleged agreement was void under the statute, as creating an illegal suspension
of the power of alienation and because not in writing, and that the plaintiff
had not such an interest in the real estate as authorized him to maintain the
action.
Held, that, assuming that the agreement so far as unexecuted was void
under the statute, the defendant, the survivor, could not be compelled to
convey or devise to the plaintiff the undivided one-seventh of the real estate
owned by her as a tenant in common with her brothers and sisters, but that
as to the other six-sevenths, as to which the agreement had been executed by
the other tenants in common by conveying and devising their shares to her,
she would not be permitted to repudiate the agreement under which she had
taken title, as such a repudiation would be a fraud upon all her deceased
brothers and sisters, and that on her death such shares should go to the
plaintiff ;
That the plaintiff, as the equitable owner of the reversion of the six-sevenths
of the real estate which had come to the defendant as survivor under the
agreement, could maintain the action. MURPHY . WHITNEY..
... 573
Action to enjoin a nuisance and to recover damages—an equity action,
entitled to be tried as such.] The complaint, in an action brought by riparian
owners, on whose premises was a mill operated by a water wheel, alleged that
the defendants, who maintained a dam and operated a mill on the same stream
next below the plaintiffs, by their dam wrongfully raised the water of the
stream and set it back upon the plaintiff's wheel, impairing its efficiency, and
stated that such flooding existed when the action was commenced and had
existed for some time before; the complaint prayed that the plaintiff might
recover the damages already sustained, and that the defendants be per-
petually enjoined and restrained from continuing the unlawful flooding.
Held, that the action was an equity action, governed as to the trial of the
issues therein by the law applicable to equity cases; that the defendants had
no absolute right to the trial of such issues by a jury; and that in regard to
questions submitted by it to the jury, the trial court had power to reverse,
disregard or modify the findings of the jury. DEAN v. BENN..
3. - Acquiescence by a riparian owner in the building of a dam below him
equitable estoppel by silence and acquiescence and settlement of boundary line.]
The evidence showed that the dam maintained by the defendants had been
built by their grantor, of such a height that it would injuriously flood the
plaintiffs' land, to the plaintiffs' knowledge, but that the plaintiffs made
no objection thereto at the time, but kept silence, and without putting the
builder of the dam in equal knowledge of the fact, permitted him to incur
large expense in creating the defendants' water power and building the
structure connected therewith; and that in the following year, the plaintiffs
exchanged deeds with the builder of the dam, settling the boundary line
between them upon the stream, without making any claim that the damn set
back water upon their premises.
Held, that the acquiescence of the plaintiffs in the erection of the dam to
such a height as to cause the damages complained of, together with their
silence at the time of the exchange of deeds, prevented a recovery by
them. Id.
4. Equity jurisdiction to set aside a judgment regularly obtained the
mistake must be material.] A mistake, which will justify a court of equity
in setting aside a judgment duly and regularly obtained, must be material
and must have worked real and not merely technical injustice.
A mere unfounded impression on the part of a person who has allowed a
money judgment to be taken against him, as to the form of the obligation
on which the judgment proceeded, is not such a mistake as will call upon
a court of equity to set aside the judgment, where it appears that an indebt-
edness for the amount of the judgment actually existed, and that the
judgment debtor intended to protect the creditor by a judgment for what
was really owing to him. DEVLIN v. BOYD....
Agreement for the assignment of a patent and the formation of a copart-
nership dissolution of the partnership accounting equitable rights
enforced ·contract unlawfully destroyed by one of the partners - a new contract
made by him personally inures to the partnership.
See SPEARS v. WILLIS.
Usury-compensation for a loan of credit-cancellation of an usurious
instrument - equitable relief · no adequate remedy at law-pleading supple-
· Fire insurance — interest of the insured- unconditional ownership in
fee simple — equitable title not sufficient — severable policy.
See MOTT v. CITIZENS' INS. Co..
Conveyance to a corporation · -condition as to its control by the majority
stockholder-combination to prevent it.
See BAUMGARTEN v. NICHOLS
ESTOPPEL- Acquiescence by a riparian owner in the building of a dam below
him-equitable estoppel by silence and acquiescence and settlement of boundary
By judgment.
See JUDGMENTS.
EVICTION - Of a tenant.
See LANDLORD AND TENANT.
EVIDENCE - Letters of a party as evidence in his favor.] 1. On the trial
of an action brought against a firm of stockbrokers, to recover a balare
claimed by a customer to be due him on certain purchases and sales of
stock, letters written by the plaintiff to the defendants were admitted in evi-
dence on behalf of the plaintiff over objections that they were immaterial,
were not evidence as against the defendants, and contained declarations in .
the plaintiff's favor.
Held, that the letters were properly admitted, since they related to the matter
in controversy and were parts of a continuous correspondence between the
parties, and were either answers to communications from the defendants or
were letters which called for an answer. WHITAKER v. WHITE..
2. Entries of engagements in a lawyer's diary as evidence of where he
was on certain days.] The plaintiff, who was a lawyer, was permitted to
give in evidence upon the disputed question as to the date of an interview at
the defendants' office, two entries made in his lawyer's diary of the time ard
place of engagements for the days in question, not connected with the subject
in controversy, with a view of showing where he was on those days.
Held, that these entries would doubtless have been proper to refresh the
plaintiff's recollection as to the time and place of such engagements, but if
they failed to do this, they were not admissible as original entries, for they
were irrelevant to the real issue;
That an entry to that effect was clearly inadmissible in a case in which the
plaintiff was able to testify to the interview at the defendants' office on that
date without the aid of the memorandum;
That both entries were open to the objection that the plaintiff did not testify
to the correctness of either when made, which was indispensable;
And that the error in admitting the entries was prejudicial to the defendants
and called for a reversal. Id.
3. Fossession under a parol contract for the sale of land, and payment
as a defense in ejectment — evidence as to the agreed purchase price.] In an
action of ejectment tried before a referee, in which the defendant claimed a
right to the possession of the premises by virtue of a parol contract, sale
and payment of the agreed purchase price, the referee found that the parol
contract to sell the land to the defendant was made, but that the evidence did
not show what price was agreed upon, and stated that consequently it was
not necessary to make a finding as to the state of the accounts between the
parties.
Held, that the evidence did establish the price agreed upon in the parol
contract to be paid by the defendant for the premises, and hence that the
state of the acccounts between the parties was material, as bearing upon the
question as to whether the plaintiff had been paid for the land, and should
have been determined. RIDDELL . CORNELL..
A deed, absolute in form-degree of proof required to show it to
be a mortgage.] The evidence required to show that a deed, absolute in form,
was intended to be a mortgage, must be clear, unequivocal and convinc-
ing; and when an oral defeasance is relied upon for this purpose, its exist-
ence must be established beyond a reasonable doubt.
The fact that the grantor in a deed, absolute in form, understood the trans-
action to be a mortgage, is not alone sufficient to prove it to be so, in the
absence of fraud or mistake.
If a deed, absolute in form, was not, at its execution, intended to be a mort-
gage, it is not competent for the grantor therein to show by parol that the deed
was, in fact, executed in trust for his benefit. BARTON v. LYNCH
5. -Liability of the owner of a house or the contractor, for a furnace —
building contract as evidence.] On the trial, in a Justice's Court, of an action
brought to recover the value of a furnace placed by the plaintiff in the
defendant's house, it appeared that the defendant had made a contract in writ-
ing with a third party for the erection of the house, and the defendant
claimed that the furnace was furnished to such third party. The plaintiff
controverted this and claimed that the furnace was furnished to the defend-
ant, whereupon the defendant offered in evidence the building contract,
which was excluded.
Held, that the particular terms of the contract were immaterial, and its
exclusion was not error. MEURER. VON KRAMER.
Elevated railroads · rental value of premises affected thereby· vacant
rooms evidence effect of the road upon one's business not a conclusion
but a fact-ecidence as to accessibility of premises — easements of nominal
value-parties plaintiff.
See LAZARUS . METROPOLITAN EL. RY. Co
Bond executed by a married woman for a debt of her husband - pleas of
invalidity of the bond and of payment - counterclaim not affected thereby.
Liability on a note signed by another as agent-payment of subsequent
notes similarly signed, as evidence of liability.
Contract to erect a building for its cost and a stipulated sum for services
-evidence, as to the agreement -as to the cost.
Application of payments — effect of a receipt stating the application of a
portion of the money received.
See PAINTER . POWER....
Opinion evidence ·
not competent, where the facts are descriptive and
Negligence-submission of the question to the jury — evidence of freedom
from contributory negligence.
See PEASLEE v. TOWN OF CHATHAM..
Breach of a theatrical “sharing terms" agreement — damages — evi-
dence as to previous receipts of the play.
Savings bank account in trust for another—the trust not affected by sub-
sequent acts or declarations of the depositor.
How evidence is to be construed, on review of a direction of a verdict for
See BOND . N. Y. C. & H. R. R. R. Co....
Assault committed by throwing vitriol — identification of the defendant.
See PEOPLE v. BRACCO...
Malicious prosecution — malice inferred-advice of counsel.
EXECUTION — Supplementary proceedings-examination of a third per-
son - what proceedings must be had in the district where the judgment debtor
resides.] While an order for the examination of a third person in supple-
mentary proceedings may be made by a judge outside of the judicial
district in which the judgment debtor resides, yet all proceedings subse-
quent to the examination, including the appointment of a receiver, must be
before a judge of the district in which the judgment debtor resides.
General creditors defeated by a sale of property under a chattel mortgage
void for non-filing — receiver in supplementary proceedings- maintenance of
an action by him to annul a chattel mortgage made by his judgment debtor.
See STEPHENS v. PERRINE..
An execution which is permitted to become dormant loses a precedence
which it may have acquired by being levied.
See KINGS COUNTY BANK v. COURTNEY.
EXECUTORS AND ADMINISTRATORS - Sale by executors to them-
selves— presumption of invalidity overcome by acquiescence and laches.] A sale
by executors, of their testator's interest in a partnership, to themseives, as
surviving partners, is not absolutely void, although voidable at the instance
of a beneficiary under the testator's will; and the legal presumption against
the validity of such a sale may be overcome by the acquiescence therein of
such beneficiary, accompanied by a release and followed by laches, as, e. g.,
a delay of thirteen years in commencing an action to avoid the sale.
GEYER v. SNYDER..
The right of testamentary trustees of residuary real estate, charged with
legacies, to enjoin an executrix from leasing the same and collecting rents.
See STEVENS . STEVENS..
Assignment of a mortgage by an administrator to himself, voidable, but
Purchase of the exclusive right to produce
a play-representations as to the vendor's rights in the play.] The complaint
in an action brought to recover damages because of the alleged false and
fraudulent representations of the defendant as to his sole right to produce
in the United States a certain French play, alleged to have been made on the
purchase by the plaintiff from him of the exclusive right to produce the
play in the United States for a certain period, held, to have been properly
dismissed on the trial, on the ground that the plaintiff's evidence failed to
establish a cause of action. MINER v. DALY...
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