CONSIDERATION - Continued.
Promise to marry sufficient.] An agreement to marry, which
was afterward performed, held to be a good consideration for a
promissory note made by the intended husband and transferred to the
intended wife, there being no disability in either party to marry.
Held, also, that the presumption was that the parties were capable
of making the contract of marriage.
See CONTRACT, 105; EVIDENCE, 420; GUARANTY, 75; MORTGAGE, 689;
PROMISSORY NOTES, 65, 300.
CONSTITUTION OF THE STATE APPLIED, EXPLAINED AND CITED:
ART. 6, § 19
ART. 7, § 13
ART. 10, § 2
CONSTITUTIONAL LAW-title to local act.] A statute was, in substance,
one to amend the charter of the village of D. (Laws 1873, chap. 285);
the conferring of power to create a debt for the purpose of supplying
the village with water, being only one of the elements of the general
subject. The title stated that it was an act to amend the charter;
and all the provisions of the act were appropriate to an amendment of
the charter. Held, that no matter how many particulars were em-
braced in the statute, they, together, embraced but one subject, and it
was not material that the title of the act mentioned one of those par-
ticulars and omitted the others.
PEOPLE ex rel. FAULKNER v. TRUSTEES OF DANSVILLE.............
Laws 1872, chap. 702, not in contravention of U. S. Con-
stitution, art. 1, § 10, subd. 1.] In 1832 The N. Y. & H. R. R. Co.
and the city of New York entered into a contract by which the
said railroad company were authorized to lay their tracks in the city
streets, and the common council of the city was authorized to deter-
mine when such tracks became an obstruction to the street and order
their removal, if necessary. By Laws 1859, chap. 387, the railroad
company were authorized to run their cars by steam on the Fourth
avenue in said city for thirty years. Under this act and the previous
contract the company constructed a double track railroad through said
avenue. By Laws 1872, chap. 702, provision was made for sinking the
roadway and tracks of the company, and arching over or bridging the
same so as to enable the public to use the avenue. The act provides
(2) that two temporary tracks and two additional permanent ones
shall be laid; that (§ 6) a board of engineers, who are designated,
shall superintend the work; that (7) one-half of the cost of the
work shall be borne by The N. Y. & H. R. R. Co., and one-half by the
city, and that (8) the half borne by the city shall be raised by taxa.
tion. The city is (9) forbidden to obstruct the improvement, or the
use of the avenue for the purposes named, and (§ 10) the exclusive
right to use and control the tracks when completed is given to The
N. Y. & H. R. R. Co. Provision is made for payment of the share of
the city as the work progresses, and the comptroller of the city, upon
a compliance with certain prerequisites, is directed to draw his warrant
in favor of the railroad company for the sums to grow due. Under
the law, one-quarter of the estimated cost of the work was raised by
tax in 1872, and paid into the city treasury to meet the city's share of
the expense. Held, that the act of 1872 was not in violation of art. 1,
§ 10, subd. 1, of the U. S. Constitution, forbidding State laws impair-
ing the obligation of a contract, as (1) the law of 1859 absolved the
railroad company from the contract of 1832, or if not, (2) the city, by
CONSTITUTIONAL LAW-Continued.
not objecting to the law of 1872 until the machinery to carry it out
was put in operation and relator acted upon it and incurred expense,
must be deemed to have acquiesced, and (3) the legislature had power
to withdraw from the city the control of the street and exercise it
itself, and in so doing took from the city no vested right.
PEOPLE ex rel. N. Y. & H. R. R. Co. v. HAVEMEYER..........
Nor in violation of art. 3, § 16, or art. 7, § 13, or art. 10, § 2, or
art. 1, § 9, of the State Constitution, nor unconstitutional as taxing for
private purposes.] The title of the act of 1872 is "An act to improve
and regulate the use of the Fourth avenue in the city of New York."
Held, (1) not in violation of art. 3, § 16, of the State constitution, relat-
ing to private and local bills. Held, also, (2) that the act is not in vio-
lation of art. 7, § 13, of the constitution, which declares "Every law
which imposes, etc., a tax shall distinctly state the tax and the object
to which it shall be applied," etc., nor (3) in violation of art. 10, § 2,
by reason of the creation of the board of engineers, nor (4) in viola-
tion of art. 1, 9, which provides that the assent of two-thirds of the
members elected to each branch of the legislature shall be required
to every bill appropriating the public moneys or property for local
or private purposes, nor (5) in violation of the constitution as being
beyond the scope of legislative power in imposing the payment of the
cost of the improvement upon the city for the benefit of The N. Y.
& H. R. R. Co. There is no such limitation on legislative power. Ib.
Municipal corporation — waiver by- Estoppel.] Held, further,
that the city having accepted the law, through its officers by certain
acts, and through its citizens by the payment of the tax levied for
the city's share, should be deemed to have waived any statutory or
constitutional rights in objection thereto. Ib.
Constitution, art. 6, § 19 - inferior and local courts. Statutory
construction-Laws 1873, chapter 370.] By Laws 1873, chapter 370, it
is provided, that there shall be a police justice of the village of Port
Jervis, who shall be appointed by the board of trustees of said village,
and "shall, in said village, possess all the jurisdiction, powers and
authority *** vested in *** justices of the peace of the town of
Deerpark, *** and he shall have jurisdiction to hear and determine
all cases arising under the charter, by-laws, or ordinances of said vil-
lage." Held (following Brandon v. Avery, 22 N. Y. 469), (1) that the
office was inferior and local within article 6, section 19, of the State,
constitution, and the legislature had the power to create the same and
make it either elective or appointive, and (2) that the jurisdiction of
the officer was sufficiently defined in the act named.
PEOPLE ex rel. CREEGAN v. DUTCHER..
Validity of chapter 579, Laws of 1871.] The constitutionality of
chapter 579, Laws of 1871, entitled "An act to lay out," etc., Ocean
avenue, in the county of Kings, doubted on the grounds (1) that no
compensation is provided for the owner of an estate less than a free-
hold in lands taken, and (2) that the assessments for compensation for
lands taken for an avenue one hundred feet wide through agricultural
lands, expenses of commissioners, etc., and for the cost of construction
are limited are lands lying within one bundred feet on each side of
such avenue.
See EMINENT DOMAIN, 399; JUDICIAL OFFICE, 34; PRACTICE, 559.
CONSTRUCTION OF CONTRACT: See BOND, 226; CONTRACT, 478, 692; COR-
PORATION, 230; DAMAGES, 685; DEED, 330; DEMURAGE, 264; LEASE,
591; MUNICIPAL CORPORATION, 512; SURETYSHIP, 652; WATER
PRIVILEGE, 325.
CONSTRUCTION OF STATUTES: See STATUTORY CONSTRUCTION.
CONSTRUCTION OF WILL: See ACCUMULATIONS, 80; ESTATE, 318, 410;
WILL, 103, 385.
commitment of witness before grand jury for refusing to
answer question-power of court to commit -Libel-proper question on
complaint for.] S., a witness before the grand jury at the Kings oyer
and terminer upon a complaint for a libel published in a newspaper,
was asked to disclose the name of the writer which he admitted he
knew, and upon refusing to do so the court committed him to the
county jail “until he may answer the question propounded to him.”
Held, (1) that the question was proper; (2) that the court of oyer and
terminer had, both by common law and statute, authority to commit
him for refusing to answer the same, and (3) that the commitment
"until he may answer was lawful.
PEOPLE ex rel. PHELPS v. FANCHER.
See HABEAS CORPUS, 467; PRACTICE, 449, 551; SUPPLEMENERY PRO-
CEEDINGS, 572.
CONTRACT when void as against public policy - consideration — pro
curing discontinuance of criminal proceedings.] N. sold a patent to
S. and W., but W. afterward claimed that N. and S. had conspired
together to defraud him by misrepresenting the value of the patent,
and he accordingly procured them to be indicted for the fraud, and
brought an action against them for $6,000 damages. The counsel
for W., in order to procure the testimony of N., entered into an agree-
ment with the counsel for N., to the effect that N. should testify in
the civil and criminal cases, and that in case judgment was recovered
in the civil case it should not be enforced against N. for more than
$1,000; that N. should be given the control for his benefit of the
judgment for whatever sum he should have to account for to W.,
and that "N. testifying fully as above, the counsel will recommend a
nol pros." as to him in the criminal case. N. testified accordingly,
and W. recovered in the civil case for $6,000. N. paid W. $1,000
on the judgment, and W. subsequently denied that the agreement
was binding, and threatened to enforce the judgment in full against
N. In an action by N. against W. to enforce the agreement and
to procure an assignment of the judgment for his benefit to the
amount of $1,000, and for a release from liability on the judgment:
Held, that it being the manifest intention of the agreement to pro-
cure a discontinuance of the criminal proceedings against N., the
agreement was void as against public policy, and the action could not
be maintained.
,for public work-awarding of — what is not variation of proposal.
Waste of public property by official - action for, under Laws 1872, chap.
161.] The authorities of a city advertised for bids for lighting the city
by gas. The bids were to be examined and the contract awarded
December 31, and the lighting was to commence that night. A com-
pany, whose pipes were laid through certain streets of a district, but
not connected with the street lamps, accompanied their bid with this
condition, "provided sufficient time is given this company to make the
necessary connection." Another company, with whose pipes the lamps
were connected, bid $37 and $39 per lamp. By an understanding
between this company and other companies, those companies did not
bid. The first-named company bid $35 per lamp, and its bid was
accepted. Afterward, new proposals were issued for lighting streets,
not reached by the pipes of this company, and bids were received and
a contract made for lighting those streets at $33 per lamp with the
other competing company. Held, (1) that the proposal of the company
whose bid was accepted was not irregular because of the proviso; and
(2) that the fact of the subsequent bid and contract, at a lower rate,
was not a demonstration that the whole district could be lighted at
that rate, so as to render the public officers awarding the contract upon
the first proposals at a higher rate, liable to action, for waste of the
municipal property, under Laws 1872, chap. 161.
ZOLLIKOFFER v. HAVEMEYER.
-, performance when time is not of the essence of.] When time
is not of the essence of the contract a party cannot be barred of his
rights without notice to perform in a specified reasonable time.
HUBBELL v. VAN SHOENING.....
Construction of.] In an action for goods sold, defendant alleged,
in his answer, that he had delivered a quantity of grapes to H. at the
plaintiff's request, which the latter agreed to apply upon his account
against the defendant. The defendant proved that after having had
a negotiation with H. about selling grapes to him, he told the plain-
tiff that H. wanted some grapes; that he asked the plaintiff if he
could pay his account with the grapes he was about selling to H., trade
out, or turn his grapes on his account, and allow his men to trade out
part, or all of it, as he saw fit. To which the plaintiff replied in the
affirmative; whereupon the defendant delivered grapes to H. amount-
ing to over $330. It was proved that H. did not assume any liability
for the defendant to the plaintiff, and that he was still liable to the
defendant for the grapes sold to him, except a small portion which
had been paid for. Held, that the plaintiff did nothing more than
consent to take H.'s liability instead of the defendant's for the indebt-
edness of the latter; that the fair inference from the conversation was
that if H. would assume the payment of the defendant's present and
future indebtedness, the plaintiff would take that and give the de-
fendant credit for that amount. Held, also, that the plaintiff was en-
titled to recover the amount of his account.
Purchase of mower on trial — when vendee becomes liable.] De-
fendant, in the spring of 1858, purchased a mowing machine upon the
agreement that, if it did not work well, he need not keep it or pay for
it. He kept it through the years of 1868 and 1869, doing his own
mowing and that of his neighbors. Held, that he could not then re-
fuse to pay for the machine, on the ground that it did not work well,
but was liable for the purchase price.
See AGENCY, 259, 696; COMMON CARRIER, 304; CONFLICT OF LAWS,
449; CONSIDERATION, 322; CORPORATION, 13, 71, 230; Covenant,
650; DAMAGES, 666, 685; DEED, 330; DEMURRAGE, 264; IN-
FANCY, 37; INSURANCE, 497, 582; LEASE, 591; MORTGAGE, 109,
689; MUNICIPAL CORPORATION, 177, 512; SERVICES, 393; STAT-
UTE OF FRAUDS, 29, 695; SPECIFIC PERFORMANCE, 49; SURETY-
SHIP, 652; USURY, 424, 680, 693, 697; WATER PRIVILEGE, 325.
CONTRIBUTORY NEGLIGENCE: See NEGLIGENCE, 406.
CONVERSION: See ARREST, 672.
CONVICTION: See CRIMINAL EVIDENCE, 61.
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CORPORATION not liable upon unauthorized contracts of officers.] The
president of a railroad company entered into a contract with the plain-
tiff that the company would pay him a certain sum for procuring con-
tractors to enter into a contract to construct and equip its road. He
procured such contractors. The charter of the company gave the
control of its affairs to a board of directors, but did not, nor did the
by-laws, authorize the president to bind the company by his contracts.
The president was not authorized by the directors to make the contract,
nor had they any knowledge of it. Held, that the company was not
liable on the contract.
RISLEY V. IND., B. & W. R. R. Co.....
Contracts of officers for their own benefit — agency.] The presi-
dent of a railroad company made a contract with contractors for the
construction of the road for the sum of $5,000 per mile, to be paid in
bonds, but afterward agreed to increase the amount to $6,500 per mile
in consideration that the additional $1,500 be divided between the con-
tractors, the president and the plaintiff. The $1,500 per mile was to
be paid the contractors by the company when they had laid the iron.
The directors of the company ratified the contract, but without any
knowledge of the agreement as to the division of the $1,500. The
contractors gave an order on the company in favor of the plaintiff for
his share of the bonds under the agreement as to the division, in terms
payable out of the $1,500 per mile; which order the company accepted.
Afterward, and before the iron was laid, the contractors assigned their
contract to the president of the road, who completed it. In an action
by the plaintiff to recover the bonds under the order, held, (1) that the
company was not liable, since the $1,500 per mile, against which the
order was drawn, was not payable until the contractors had laid
the iron, which they had not done; and, (2) that the assignment to
the president inured to the benefit of the company, and that in com-
pleting the contract the president acted as trustee for the company. Ib.
When officers of not personally liable on contract for.] An agree-
ment was as follows: "Agreement between E. H. and B., trustees of
the L. U. Cheese Manufacturing Co., the parties of the first part, and
J. and M., the parties of the second part, witnesseth, the parties of the
first part agree with the parties of the second part to manufacture and
make cheese, etc., . . . the parties of the second part to do all the
work, etc.,
the parties of the first part are to pay the parties of
the second part," etc., etc. The work was agreed to be done in a
cheese factory belonging to the L. U. Cheese Manufacturing Co., a
duly incorporated company, of which E. H. and B. were trustees, and
authorized to make a contract of this kind for the company, and J.
and M. had full knowledge of these facts. Held, that E. H. and B. were
not personally liable upon the agreement.
Preferred stock — construction of contract-right to divi-
dends.] Defendant, a railroad corporation, in 1857, issued certain pre-
ferred stock. By the terms of the certificates issued, it was stated that
the stock was "entitled to dividends at the rate of ten per cent per
annum, payable semi-annually, in New York, on the first days of June
and December, in each year, out of the net earnings of said company,
and the payment of dividends as aforesaid is hereby guar-.
anteed." Held, (1) that the issue of stock of this character was
authorized by the laws of Ohio, Michigan, Indiana, and Illinois under
which said corporation was created and the stock was issued; and (2)
that the holders of the stock were entitled to the guaranteed amount
of dividends out of the net earnings whenever made, and were not re-
stricted to the earnings of any year for the payment of dividends fall-
ing due that year.
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PROUTY V. MICH. SO. AND NO. IND. R. R. Co......
- Continuance of legal existence.] A machine company was organ-
ized as a corporation with power to sue and be sued and the business
of the company was conducted in the corporate name for the period
of two years, at the end of which period the company voluntarily
ceased to do business, and a new company was organized with larger
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