the company is absolutely entitled
to the exercise of corporate priv-
ileges for thirty years; and was not
designed to be a bar to an action in
the name of the people brought for
a dissolution of the company for
non-compliance with the conditions
precedent to its valid incorpora-
tion.
ib
8. An act of the legislature, author-
izing a fire insurance company, on
certain conditions, to take marine
risks, is not a legislative recognition
of the valid incorporation of the
company, under the act of 1849. ib
9. The appointment of a receiver of
an insurance company, by the court,
and the consequent partial assump-
tion and control by the court of the
affairs and funds of the company,
is not a judicial recognition of the
due incorporation of the company,
or an estoppel upon proceedings for
a violation of the law of its exist-
ente.
ib
13. When an insurance company ac-
cepts from the assured the premium
for a renewal, and renews the insur-
ance, it will be deemed to have de-
clared the contract of insurance to
be valid, and to have waived the
forfeiture, if any has occurred by
reason of the omission of the insured
to give notice of other insurances
and have them indorsed on the pol-
icy. Carroll v. The Charter Oak
Insurance Company,
402
14. Under such circumstances, the
company is precluded from asserting
either that the renewal was inoper-
ative, or that the policy became void
immediately after it was renewed,
by reason of circumstances of which
it was fully cognizant at the time of
renewal, on the principle of estoppel
in pais. JOHNSON, P. J. dissented. ib
15. There is a wide distinction between
the liabilities of those who give notes
to form the capital stock of a mutual
insurance company and of those
who give notes for premiums, after
the stock is made up and the com-
pany brought into existence. While
the former class are liable on their
notes, irrespective of losses, the lat-
ter are liable only for the pro rata
share of such losses, in common with
all other available premium notes
held by the company. Dana v.
Munro,
17. The agent of an insurance com-
pany about to be organized applied
to the defendant's agent to insure
the buildings of the defendant in the
company, when it should be in a
situation to do business; saying that
it was not yet organized, but soon
would be. Subsequently, after the
company was authorized to receive
applications, the request to insure
was renewed, and acceded to by the
defendant, who made an application,
and gave a note for the premium;
without any intimation being given
that any obligation was sought or
intended other than that incurred
by every person insuring in a mutual
insurance company. Held that the
1. Where, in an action upon a judg-
ment, the defendant, by his answer,
puts in issue the existence of a reg-
ular, valid and legal judgment, any
evidence tending to show the judg-
ment illegal or void, is competent.
Hence a certified copy of the judg-
ment record, showing that since the
joining of the issue the judgment
has been vacated, is admissible.
Kinsey v. Ford,
195
2. Requisites and sufficiency of the
statement of indebtedness upon
which to enter a judgment by con-
fession. McDowell v. Daniels, 143
making up the sum for which judg-
ment is confessed; but not stating
which items or sums were loaned to
the defendant, and which were paid
for his use; and not distinguishing
at all between the sums loaned to
the defendant and the sums paid for
his use; nor stating to whom any
item or sum was paid for the use of
the defendant, is insufficient. ib
6. Judgments by confession, entered
on insufficient statements, being by
the statute pronounced void, as to
other judgment creditors, cannot be
supported by affidavits, on a motion
to set them aside for irregularity. ib
7. An attaching creditor, who has not
yet recovered a judgment, is not
within the class of persons who can
impeach the bona fides of a judg-
ment confessed by the debtor, to a
third person, before the levying of
the attachment. That can only be
done by a judgment creditor. Bent-
ley v. Goodwin,
8. A judgment declaring a conveyance
fraudulent and void as against credi-
tors directed the premises to be
sold, and that out of the proceeds
the plaintiffs' judgments be satisfied;
that the surplus, if any, be deposit-
ed in the trust company; and in
case of a deficiency on the sale, that
the defendant account for the rents
and profits of the premises. Held
that the judgment was erroneous in
directing a sale of the premises to
take place before the accounting;
that provision rendering the judg-
ment interlocutory, and preventing
an appeal by the defendant and a
stay of proceedings until after the
premises should have been sold.
302
Wood v. Hunt,
1. After an agreement by a landlord
to repair is broken, it becomes a
chose in action in the tenant's favor,
upon which he can maintain an
action against the landlord. Mirick
v. Bashford,
191
2. If a grantee in fee of the landlord
refuses to recognize any liability to
repair, and the tenant, with notice
of such refusal, attorns to him and
pays him rent, the grantee is not
liable on the landlord's contract to
repair, if such contract was broken,
and the landlord's liability for the
breach was complete, before the
grantee had acquired any legal
estate in the premises.
ib
3 If, after a purchaser from the land-
lord has repudiated the landlord's
covenant to repair, and refused to
perform it, the tenant, avowing his
intention to hold the lessor upon his
covenant, continues in possession of
the premises, attorning to the pur-
chaser, by the payment of rent,
VOL. XXXVIII.
that the evidence was properly re-
117
ceived. Hotchkins v. Hodge,
2. A wrong done to the female, such
as sexual intercourse with her, by
her alleged suitor, will not make a
promise to marry, founded thereon
or arising therefrom, invalid or in-
operative. Such a promise is not
liable to the objection that it encour-
ib
ages immorality.
3. It is too late, after the frequent ad-
judications in our own state and
elsewhere, to consider the question
whether long bestowed and particu-
lar attentions, having apparently an
honorable object, furnish sufficient
evidence from which the jury may
ib
imply a promise of marriage.
4. It is not indispensable that a prom-
ise to marry should be express. It
may be implied from circumstances;
and it may rest partly on both; that
is, on express words, and on conduct
and acts reasonably leading to the
ib
same conclusion.
5. In action by a female, for a breach
of promise of marriage, evidence to
show that the plaintiff drank to ex-
cess, and sometimes to intoxication,
without specifying under what cir-
cumstances the alleged excesses
took place, or that her general re-
putation, even as to sobriety, is bad,
is inadmissible in mitigation of
damages. Button v. McCauley, 413
MONTAUK LANDS.
See STATUTES.
1. When a mortgage or judgment has
been once paid, and the lien dis-
charged, the parties cannot restore
the lien, to the prejudice of third
persons who are then incumbrancers.
Angel v. Boner,
2. If the mortgagor can become the
absolute owner, in his own right, of
the bond and mortgage, the debt
will be extinguished and the lien of
the mortgage discharged by an un-
conditional assignment of the mort-
gage to him; and it is not in the
power of the assignor and assignee,
by any arrangement they may make,
to restore the lien of the mortgage,
so that it shall have priority over a
ib
junior mortgage.
3. W. borrowed money of G. and gave
his bond and mortgage to secure the
payment of the amount. G. demand-
ing his money, W. procured L. to
indorse his note and to raise the
money for him, on being secured by
the bond and mortgage, which were
assigned by G. to L. for that purpose.
At the maturity of the note W. ap-
plied to B. for the money, upon the
security of the same bond and mort-
gage; informing him there were
two other mortgages upon the same
premises, one of which was prior
and the other subsequent to the one
in question. B. agreed to furnish
the money, upon the terms proposed.
W. then applied to L. to have the
mortgage assigned to him (W.) to
be by him assigned to B.; and L.
accordingly assigned the same to W.
to enable him to get the money, by
W. there-
assigning the same to B.
upon assigned the mortgage to B.
and obtained the money thereon,
with which he paid the note in-
dorsed by L. Held that under the
circumstances, W. never owned the
bond and mortgage, even for an
instant, nor did he pay the debt
secured thereby. That it was not a
case of payment and satisfaction;
nor a case for the application of the
ib
doctrine of merger.
4. Held, also, that W. was merely an
assignee in trust; the trust being
specified by the parties, though not
expressed in the written assignment,
viz: that W. should raise money
upon the bond and mortgage and
therewith pay the note indorsed by
L. And that equity would have
enforced a performance of the trust.
5. Held, further, that by such assign-
ment of the mortgage to W., the
mortgagor, for the purpose above
mentioned, the lien and priority
thereof was not lost, or postponed to
ib
that of a junior mortgage.
2. Incidental damages to the owners
of property, resulting from the estab-
lishing or altering of the grade of a
street are not to be provided for, or
paid, in any form, but are regarded
and treated as damnum absque in-
juria.
ib
3. The fundamental principle that
prevails in all the statutes authoriz-
ing or providing for the grading,
paving and improving of streets, is
that the property thought to be
benefited must pay all that is to be
paid, and not the municipal treas-
ury.
ib
4. The rule of the common law is equal-
ly adverse to the claim of an in-
dividual property owner to be com-
pensated for losses not resulting
from misconduct or unskillful man-
agement, but arising necessarily
from the making of the improve-
ment.
1. The act of the legislature of March,
1820, authorizing the corporation of
New York to extend the battery in-
to the river not exceeding 600 feet,
vested in the corporation the title to
the soil under the water so to be
filled in, but limited the use of the
land so to be made out of the water,
to be for a public walk, and for
erecting buildings and works of de-
fense thereon, but without any pow-
er to the corporation to dispose of
the same for any other use or pur-
pose whatever, and without any
power of selling it, or any part
thereof. Held that this restriction,
in the act, prevented the corpora-
tion from selling or otherwise dis-
posing of any part of the land so to
be acquired, for any private purpose
whatever. The People v. Vander-
bilt,
282
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