1. A married woman cannot contract
press malice, that the act should proceed |
from hatred or ill-will. It may be in-
ferred from an apparent mischievous in-
tention of the mind, or from inexcusable so as to bind herself generally, and ber
recklessness.
Ibid. general personal engagements will not
operate so as to bind her separate estate.
The laws relating to married women,
passed in 1848 and 1849, have not re-
moved this general disability to contract.
Morgan v. Andriot,
2. A claim for damages arising out of a
1. In an action for malicious prosecu- violation of a contract made by a married
tion, the question of probable cause does woman, granting the use of a thing at-
not depend upon an offence having been tached to a freehold, possesses none of
committed, nor upon the guilt or inno- the elements necessary to obtain relief
cence of the party accused. It is enough, against her separate estate. Per BRADY,
if the circumstances shown were suffi- Judge.
ciently strong to justify a cautious man
in the belief that the accused was guilty 3. A justice of a district court has no
of the charge made, and that the prose- jurisdiction of an action against a married
cutor, at the time, honestly entertained woman, and can give no personal judg
such a belief. Scanlan v. Cowley, 489 ment against her. If she is possessed of
a separate estate, and obligations are in-
curred by her in respect to it, they can
only be enforced in a court of equity, as a
charge against it, but never as a personal
liability.
1. In an action commenced in the Ma-
It seems, that judgments in such actions
rine Court by a summons which required are not enforced by execution, but operate
the defendants to answer "a complaint as a lien upon the estate charged, and are
for a money demand on contract," the enforced as in rem. Williams v. Carroll, 438
plaintiffs, on the return of the summons,
the defendants having appeared, applied 4. In an action brought to reach the
for leave to amend it by substituting the separate estate of a married woman, the
words "an injury to personal property" complaint alleged the making of a prom-
for "
a money demand on contract." The issory note by the husband, the guaranty
court permitted the amendment, and the thereof by the wife, the protest of the
defendants excepted. Held, on appeal, note, and notice thereof to her. Also
that permitting the amendment was an that, at the making of the guaranty, she
act of discretion on the part of the court possessed a separate estate; that the note
below, which was not properly the sub-was given by the husband in payment for
iect of review. Cooper v. Kinney, 12 services rendered thereto in the erection
of a building, &c.; that the guaranty was
2. The Marine Court at general term accepted on the credit of such estate, and
may reverse, affirm, or modify the judg- that the note thus guaranteed had been
ment appealed from, and upon a reversal duly indorsed to the plaintiff. Held, bad
may order a new trial, or may give final on demurrer. Sexton v. Fleet,
judment for the defendant when it is ap-
parent that upon no possible state of 5. A married woman cannot contract
proofs can the plaintiff recover. But by guaranty, and as the only cause of ac-
where the judgment is reversed because tion alleged against her was upon such a
the evidence at the trial was insufficient contract, and not upon any equitable ob-
to sustain it, and it is not perfectly clear ligation or demand, the payment of which
that the deficiency cannot be supplied, would be enforced out of her separate es-
a new trial should be awarded. Howe v. tate, the complaint therefore was defec-
Julien,
453 tive.
Ibid.
See APPEAL, 22 to 26.
ATTACHMENT, 1, 2, 3.
HUSBAND AND WIFE,
6. Per BRADY, J.-In an action against
a married woman, her separate property
may be reached by judgment and execu
tion in the ordinary form, and in the same
manner as if she were a feme sole.
See DAMAGES, 7.
HUSBAND AND WIFE.
NEW TRIAL, 7.
4. The lien creditor succeeds only to
Ibid. rights and claims which, at the time of
filing the notice, are possessed by the
original contractor, and unless such facts
are established as would, in a proper ac-
tion, entitle the original contractor to re-
Ibid.
cover, the lien creditor cannot.
SUPPLEMENTARY PROCEEDINGS, 4.
5. It seems that if the original contractor
and the owner should make a fraudulent.
settlement for the purpose of depriving
parties furnishing labor or materials of any
lien therefor, the court would disregard
1. The defendant directed his servant
to remove snow and ice from the roof of
his house, giving no specific instructions it.
as to the manner of doing it, and the ser-
vant procured another to assist him; the
6. The primary object of the Mechanics'
ice was so negligently thrown from the Lien Law is to create, in favor of the
roof as to kill a person passing upon the sub-contractor, laborer, and material man,
public sidewalk underneath; Held, that
the defendant was responsible for the
whole performance of the work; and it
was immaterial whether the death was
occasioned by the particular act of the
servant, or by that of the other person so
344
engaged. Althof v. Wolf,
a lien upon the fund in the hands of the
owner, due or owing to the contractor,
and as to that fund to create a lien having
priority over every general creditor of the
contractor. Telfer v. Kiersted,
7. The death of the contractor after the
completion of the work, does not deprive
a sub-contractor, laborer, or material man,
of the right to thereafter file a notice of
claim, and acquire a lien for labor or ma-
terials furnished on the employment or
request of the contractor. The only con-
dition imposed by the law upon the right
to a lien under it, is, that the notice of
claim therein prescribed shall be filed and
served within six months after the work
has been performed or the materials fur-
nished.
1. Where a building contract specifies
a sum to be deducted for any particular
omission or failure in its performance by
the contractor, the owner cannot, in a pro-
8. In a proceeding to enforce a me-
ceeding by a sub-contractor to enforce a
lien acquired under the Mechanics' Lien chanic's lien, the service of the notice to
Law. claim any other or greater rate of appear and submit to an accounting, is in
deduction by reason of the omissions, for effect the commencement of a suit, and
the purpose of showing himself discharged whether the owner appears or not on the
from liability to the contractor.
day specified, the proceedings thereafter
Gillen v.
are as in an action. Brown v. Wood, 579
Hubbard,
303
2. Parties furnishing labor or materials 9. The service of a defective bill of par-
toward the erection of a building under a ticulars constitutes no ground for dis-
general employment, may acquire a lien missing the proceeding. If the bill served
under the Mechanics' Lien Law, for the is not sufficiently specific, the defendant
value of such materials and labor. Smith may, before answering, require a further
v. Coe,
365 and more particular bill, under § 158 of
the Code.
3. It is essential to the establishment
of a mechanic's lien upon premises, that
at the time of filing the notice thereof,
there was actually due or owing from the
owner to the original contractor, upon his
contract, a greater sum than the amount
of the lien claimed.
was crowded, and there was room for
only one horse and cart to pass upon it.
1. Where one of two partners gives his The horse's bit was out, and he was feed-
individual note for their joint debt, a judging. The defendants' cart, passing, came
ment upon the note operates as an extin-in contact with M.'s cart, and threw it
guishment or merger of their joint liability. and the horse into the river, where the
Benson v. Paine,
552 horse was drowned. Held, that M. could
not recover therefor. He was not only
obstructing a public highway, but was
guilty of gross negligence in leaving his
horse at the edge of a dock, after remov-
ing the bit, the only thing by which the
animal could, in case of accident or emer-
gency, be controlled. Morris v. Phelps, 38
2. Where a party has been injured by
a collision upon a public highway, he can-
not maintain an action if the facts show
that he has in any manner, by his own
carelessness or neglect, contributed to or
caused the injury of which he complains.
3. It seems that municipal corporations
1. Under the "Act to authorize persons are not responsible for injuries to third
to change their names," (Laws 1847, ch. persons, arising from the negligence, want
464), before the judge is entitled to exer- of skill, or carelessness of contractors, or
cise the special jurisdiction thereby con- those employed under them, while en-
ferred, the evidence presented must be gaged in the prosecution of repairs upon
such that he can say judicially, that the the streets of the city. Lockwood v. Mayor,
applicant will derive a pecuniary benefit &c., of New York,
by assuming another name. Mere belief
of the petitioner that it will be for his pe-
cuniary interest that his name should be
changed, is not sufficient to authorize the
judge to order the change desired.
4. But it is otherwise where the injury
is occasioned, not by any fault of the con-
tractor or his servants, but is the result
of an act which the corporation, by their
The origin of proper names considered, contract, direct to be done, In such a
and the law and usage respecting them case, the principle of respondeat superior
examined.-Per DALY, F. J. Petition of applies. Where the contractor has merely
John Snook,
566 done what he was required to do by the
contract, he is not the party to be made
2. It seems, that although the custom responsible; but those who directed him
is universal for all male persons to bear to do the act must answer for the damage
the name of their parents, there is nothing occasioned thereby.
in the law prohibiting a man from taking
another name, if he so desires; nor is
there any penalty or punishment for so
doing.
A contract or obligation may be entered
into by a person by any name he may
choose to assume. The law only looks to
the identity of the individual, and when
that is clearly established, the act will be
binding upon him.
Ibid.
1. M. left his horse and cart standing
upon a public pier or dock, within two
feet of the edge, at a time when the pier
5. Any one who casts ice, snow, or
other missiles from the roof of a house
upon the sidewalk of a city street, with-
out stationing some one below to warn
passers by, is guilty of gross negligence.
And if a person passing underneath is
injured by the act, it will not be pre-
sumed that such person was negligent so
as to defeat a recovery of damages for the
injury. Althof v. Wolf,
344
See COMPLAINT, 3.
DAMAGES, 10, 11.
MASTER AND SERVANT, 1.
NEW YORK CITY, 7.
RAILROADS, 1.
for an error of the judge in allowing wit-
nesses to state their opinions on the sub-
1. Where, upon appeal, the judgment ject, unless there are strong probable
is reversed and a new trial is ordered, and grounds to believe that the merits of the
no provision is inserted in the order allow-question were not fully and fairly tried,
ing either party to use, upon such new and that injustice has been done. Re-
trial, any of the testimony previously naud v. Peck,
137
taken, the case stands in every respect
as if no trial had taken place; and it is 4. Where the defendant moved for a
error to allow, on such new trial, the evi- new trial on the ground of newly discov-
dence taken on the former trial to be read ered evidence, which he desired to use to
from the printed case. Rippowam Co. v. rebut testimony given by the plaintiff at
Strong,
52 the trial; and it appeared that one of the
witnesses, whose testimony was newly
2. In an action upon a marine policy of discovered, was the defendant's son, and
insurance, a verdict having been rendered another was present in court during the
for the plaintiff, subject to the opinion of trial, and known to defendant to be cog-
the court at general term, the court, after nizant of dealings between the parties
argument, granted an order setting aside involved in the suit; and it also appeared
the verdict, and ordering a new trial, un- that the reason defendant did not inform
less the parties would consent to a refer- himself of the testimony which could be
ence to ascertain the amount of the dam- obtained from these witnesses was that
ages sustained by the plaintiff, exclusive he did not anticipate such evidence as
of those arising from a cause held by the was given by the plaintiff; Held, that the
court not to be within the terms of the defendant had not used due diligence, and
policy. The parties consented, and a refer- was not entitled to the new trial asked.
ence was ordered accordingly. Held, The tests by which cumulative evidence
is to be distinguished, considered.
I. That the defendants, by their con-
sent, waived their right to a new trial be- If the newly discovered evidence dis-
fore a jury, and that the final judgment of closed on a motion for a new trial relates
the court at general term was reserved to any fact proved on the trial, whether
until the coming in of the referee's report. bearing upon the issue directly or col-
II. That his report should be regarded laterally, the evidence is cumulative, and
in the same manner as a special finding the motion will not be granted. Leavy v.
of a jury, and ought not to be set aside Roberts,
unless it was against the clear weight of
evidence, and the preponderance in favor
of the unsuccessful party was so great as
to lead to the conclusion not only that in-
justice had been done, but that the find-
ing must have been the result of passion,
prejudice, undue bias, or corruption.
III. That it was for the defendants to
5. A new trial will not be granted upon
the ground of newly discovered evidence,
where it appears that the existence of the
evidence might, with reasonable diligence,
have been ascertained at the time of the
trial. Campbell v. Genel,
7. In an action by the representatives
show affirmatively, on such reference, the 6. It is not error for the presiding judge
extent, character, and amount of the inju- upon a trial to express his opinion on a
ries which resulted from the cause held question of fact, if the final determination
by the court not to be within the terms of the question is distinctly left to the
of the policy; and, that the referee hav- jury. Althof v. Wolf,
344
ing found, as matter of fact, that no ap-
preciable damage was caused thereby, and
his report not being so clearly against the of a person, for wrongfully causing his
weight of evidence as to justify the court death, the judge charged the jury that the
in setting it aside upon that account, it wife and child would have been entitled
was properly confirmed, and judgment for to a support from him, the former during
the plaintiff, for the full amount of his her life, and the latter until the age of
claim, was correct. Woodruff v. Commer-twenty-one; and that he would be en-
cial Mutual Ins. Co.,
130 titled to their earnings. Held, that the
charge was correct.
3. Where sufficient and competent proof,
on a question of value, was before the
jury, their verdict will not be set aside
8. When a case has been fairly submit-
ted to a jury, their verdict will not be set
aside merely because it seems to be against Therefore, in the absonce of any proof
the weight of the evidence. To justify the upon the subject of ownership of the soil
court in setting aside a verdict as being in the streets, the title to it must be pre-
against the weight of evidence, the pre- sumed to be in the adjoining owner, and
ponderancy should be so great as to war- not in the corporation of the city. Mott
rant the conclusion that the verdict must v. Mayor, &c., of New York,
have been the result of prejudice, pas-
sion, undue bias, or corruption on the 4. Since the law relative to altering
part of the jury. That their finding seems the grades of streets in the city of New
to be in opposition to the views expressed York (Laws 1852, chap. 52, p. 46,) the
in the charge of the judge, affords no common council cannot change or alter
ground whatever for interfering with it. the grade, in whole or in part, of any
When the evidence is conflicting, it is the street below Sixty-third street, except
right and province of the jury to deter- upon the written consent of the owners
mine the questions of fact submitted to of at least two thirds of the land frouting
them, uncontrolled by the court. Cod-upon the part of the street proposed to be
dington v. Carnley,
528 altered.
See APPEAL, 6.
MARINE COURt, 2.
5. The corporation of the city of New
York is bound to keep the streets opened
within its limits for public use, in such
repair that they may be safely traveled
upon; and for any injuries happening to
persons through the neglect of the corpo-
ration to perform this duty, it is liable.
Wallace v. The Mayor, &c., of New York,
1. The provisions of the city charters of
1830, 1849 and 1857, prohibiting the
drawing of any money from the treasury
until it has been duly appropriated to the
purpose for which it is drawn; also the 6. The sidewalk is a part of the public
tax law of 1857, restricting the application street, and although the corporation may
of the moneys authorized to be raised by impose, by ordinance, the duty upon the
tax, to the objects therein specified; were adjoining lot owner of keeping the side-
only designed as a protection against walk in repair, yet it does not thereby re-
usurpations, improvidences, or dishonesty lieve itself of the duty imposed upon it
of corporation officials, and were not in-by law, to keep in repair the streets of
tended to prevent the operation of any the city.
Ibid
v. The Mayor, &c., of New York, 203 7. The liability of the corporation for
the neglect of such a duty, differs from
subsequent act of the legislature.
2. The tax law of 1857 having author- those cases where injuries result from ob-
ized a certain sum to be levied for speci-structions placed in the streets by indi-
tied purposes, "and for such other ex-viduals, and in respect to which it cannot
penses as the mayor, &c., of New York be held liable, unless it is shown that
may be put to by law," held, in an action notice of the obstruction was given to its
brought by a justice of a district court proper officers, and they had neglected to
whose salary had been subsequently in-cause it to be removed.
creased by an act of the legislature, that
such act imposed such an obligation or
expense, and the increased salary might
be paid out of any contingent fund pro-
vided for, or out of any surplus over the
estimated amounts specified in the tax
bill as required for a particular purpose.
Ibid.
3. The rule of law, that an owner of
land fronting upon a highway, is prima
Tacie the owner to the centre of the road,
Rubject only to the public easement over
it, is applicable to the streets in the city
of New York.
1. If a defendant, after moving for a
|