USA > New York > Saratoga County > The bench and bar of Saratoga County, or, Reminiscences of the judiciary, and scenes in the court room : from the organization of the county to the present time > Part 12
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23
At the following October term Attorney-General Chatfield was called on to adjust another claim to office in this county. At the town meeting in 1850, held in the town of Providence, an equal number
197
OF SARATOGA COUNTY.
of votes were polled for Jared C. Markham and Seneca Deuel for the office of justice of the peace. The town board being of the political persuasion of Mr. Deuel declared him elected. Markham began a suit, on the relation of the people, against Deuel to oust the latter from the office. In this he was successful, for the jury found that neither were elected, and Judge Cady declared the office vacant.
It has been said that in the economy of Nature some men are designed only to serve the valuable purpose of getting into the clutches of the law by their misdeeds, and then to do good service in fur- nishing subjects for the courts to use in passing upon the unalienable rights of free citizens when jeoperdized by thoughtless magistrates. Such an one appears to have been one Rufus B. Pratt, who lived in Ballston Spa about a quarter of a century ago. Pratt, in company with Jolin T. Spicer and Horatio L. Bliss, became intoxicated and riotous on the evening of Saturday, Feb. 24, 1849. Com- plaint was made to Abel Meeker, a justice of the peace and he issued a warrant for their arrest, with the following endorsement : "Commit them to jail until Monday next for examination." The war- rant was delivered to Harvey N. Hill, a constable, who, with the assistance of the late Daniel D. Jones. arrested Pratt and took him to the jail. where he was confined, against his will of course, until Mon- day. He began an action for assault and battery and false imprisonment against Meeker, Hill and
198
THE BENCH AND BAR
Jones, by his attorneys John Brotherson and Wil- liam B. Litch. William A. Beach tried the suit for the defendants at the June Circuit, 1851. before Justice Cady. The jury found a verdict for the plaintiff for $76 and costs. The case was appealed to the General Term, and is reported in 16 Barbour 303, where the report of the opinion of the Supreme Court concludes :
"The magistrate no doubt acted from an honest belief that he was authorized to make the endorsement on the back of the war. rant. But it was an excess of jurisdiction, and wholly illegal. The law watches the personal liberty of the citizen with vigilance and jealousy ; and whoever imprisons another in this country must do it for lawful cause and in a legal manner."
The action brought by George Young, jr. against the Washington County Mutual Insurance Com- pany which was tried before Justice Willard at the June term, 1852, by Frederick S. Root for the plaintiff and William A. Beach for the defendant, was intended to recover a policy issued to plaintiff by the defendant for $500, on his dwelling house, in the town of Greenfield. From the printed case, as reported in 14 Barbour 545, I learn that the plaintiff's house was burned in the night of June 18, 1850, and that its loss was occasioned by the burning of his store, then in process of erection on the site of the former store, which had been burned in the previous March. The company rejected Mr. Young's claim on account of said rebuilding of his store, holding that a carpenter's risk is an increased hazard, and one that they did not assume in the
199
OF SARATOGA COUNTY.
issuance of the policy. The plaintiff proved that due care had been used on his part to prevent the destruction of his house and store. Judge Willard held that the plaintiff was entitled under the policy to rebuild on the foundations of his former store, using reasonable care against accidents, and in such case was entitled to recover. Judgment was entered for the plaintiff on the verdict of the jury for $562.46 and costs, which was affirmed in the Supreme Court at General Term.
Concerning the action of Hiram Fullerton against James Viall, Isaac T. Grant and Samuel A. House there is a mystery which probably will never be fully penetrated until all secrets are revealed. Mr. Fullerton was a carpenter and. pattern maker, who worked for several years in the employ of the firm of Viall & House, stove founders, at Mechan- icville. Believing them honorable and trustworthy, he had placed quite a large sum of money in their · hands and taken their note. But he found, as did many others, his confidence abused when the firm became, through mismanagement, hopelessly bank- rupt and made a general assignment, September 1, 1851. Viall had to save a portion of his private property from the general wreck, which was believed to be no fault of his, previous to the assign- ment deeded his residence to his brother-in law, Isaac T. Grant. Fullerton and other creditors soon placed their claims in the form of judgments of the Supreme Court. His attorney in these proceedings was his brother-in-law, James B. Houghtailing, of
200
THE BENCH AND BAR
West Troy. In 1852, he began an action against Viall and Grant to set aside the conveyance as fraud- ulent and made with intent to defraud creditors of the bankrupt firm. His attorneys were Isaac C. Ormsby and Edward F. Bullard. The defense had secured the eminent legal firm of Pierson, Beach & Smith of Troy. The complaint alleged that Viall executed the conveyance with intent to defraud his creditors, and that Grant accepted such deed know- ing its nature and with due notice of plaintiff's claim ; and that but for such conveyance plain- tiff's judgment against Viall and House would be a lien against such real estate, and asked that the conveyance be declared null and void. It was tried at the June term, 1854, before Justice Hand. The jury found a verdict for the plaintiff, and a judgment setting aside the deed from Viall to Grant and awarding $1,905 damages was entered on motion his counsel, June S, 1854. The defendants asked leave to file a bill of exceptions, which was granted. to be heard in the first instance at the General Term. It was affirmed by the Saratoga General Term, December 31, 1855. The Court of Appeals affirmed the verdict June 19, 1858. The full case and points are filed in the State Library, Volume 73, case No. 9; also, it may be found reported in 42 Howard 294. The mystery connected with the case was the disappearance of Fullerton in the summer of 1855. He was an unmarried, middle aged man of steady, industrious habits, and possessed of considerable means. He left his home in Stillwater to go to the
201
OF SARATOGA COUNTY.
West. He was last seen, by any one who knew him and has disclosed his whereabouts, a few days later in Cleveland, Ohio, by Mrs. Ellen Swartwout, with whom he formerly boarded in Mechanicville. He called at her house and told her that he was en-route to Chicago, and was to take the boat that evening. He belonged to an eccentric family, an ! some of his relatives entertain the idea that he is yet alive. To support the idea, they quote the fact that a bachelor uncle of his, Richard Fullerton, mysteriously absented himself and after the long interval of forty-five years, he returned to his old home in Stillwater to his brother who had long mourned his "lost Derrick" as dead. Conceding that Fullerton has "gone before," Viall is the only survivor of the parties to this action. He was completely wrecked in fortune by this judgment. Like men similarly treated by the "fickle goddess" he was ruined by over weening confidence in the men with whom he was associated and the times in which he was actively engaged in paddling his bark across the whirlpool of business. Crippled alike in body and fortune, he finds a home with a brother who has been more successful in the battle of life. Grant had previous to this suit sold the premises to Elisha Howland, a bona fide purchaser. And, the judgment in this action established the principle that the moneys received from such purchaser may be recovered from the seller. It was so recovered from Grant on an execution, and paid to the admin- istrator appointed on Fullerton's estate.
202
THE BENCH AND BAR
At the May term, 1856, was tried a case which carries us back beyond the Revolution, and brings prominently to view two men who were active par- ticipants in "the days that tried men's souls"- Col. Peter Ganzevoort, the hero of Fort Stanwix, and Major Hugh Munro, the tory leader of a raid in the town of Ballston, the mention of whose name causes the blood to tingle in the veins of the descend- ants of those upon whom he visited his atrocities. It was the suit of George F. Munro, a grandson of of the partisan leader, against Elijah Merchant of Moreau, brought to eject him from a part of lot 3 in the 20th allotment of the patent of Kayaderos- seras. Both parties claimed to possess a valid title derived from Rip Van Dam, one of the patentees. The plaintiff's attorneys were George F. Munger of Rochester, and Theodore F. Pomeroy of Auburn. They were assisted by Deodatus Wright and Clark B. Cochrane. In the higher courts, to which the case was carried, they had the counsel of Judge Sanford E. Church. Against them William A. Beach was pitted, single handed after the election of Judge Rosekrans to the Supreme Court bench. Munro claimed title by will of Van Dam, empow- ering his executors to sell his real estate. Secondly, a deed from Robert Livingston, jr., surviving exec- utor, to Jacob Walton, Isaac Low and Anthony Van Dam, dated October 24, 1771, conveying all of Van Dam's interest in the patent. Thirdly, a deed from Walton, Low and Var Dam to Hugh Munro, 'August 30, 1774. Fourthly, the death of
203
OF SARATOGA COUNTY.
Hugh Munro at Edwardsburgh, Canada, leaving an only son Hugh Munro, father of the plaintiff. Fifthly, the birth of the plaintiff at Ballston Spa, in 1804. Munro at the time of this action lived in Rochester. The defendant's title was based on a deed from Gerard Walton, attorney for Anthony Van Dam (though no power of attorney could be proven), to Peter Ganzevoort, June 17, 1797, and the inheritance of the lands by his sons, Herman and Peter Ganzevoort, on his demise. Secondly, a deed from the Ganzevoorts to Ransom Sutphin in 1841, who conveyed the lands to defendants in 1848. Thirdly, the alienage of the plaintiff and Hugh Munro, father and son. A judgment was entered for the plaintiff, pro forma, at the May term, 1856, held by Justice James. It was affirmed in the General Term, and an appeal was taken by the defendant to the court of last resort. In the Court of Appeals it was held that Major Munro was a British subject who lived near Fort Miller at the outbreak of hostilities. He adhered to the crown and went to Canada. That Hugh Munro, jr. was also a British subject by his own acknowledgment. That the plaintiff, having been born in this state, was a citizen, although his mother simply came to Ballston Spa for that purpose and returned with her child to Canada. That Hugh Munro, sr. was never attainted of treason, hence his heirs could inherit and hold against all others except the state. That the claim of adverse possession, only showing the cutting of tiniber on the premises, was not
204
THE BENCH AND BAR.
clearly proven ; but, as it gave a shadow of title a new trial was granted. The claim was then com- promised. The case is fully reported in 26 Bar- bour 383 and 28 New York Reports 9. Munro also brought an ejectment suit against Peter Ganzevoort, the younger, to dispossess him of the well known Ganzevoort estate. He was non suited in the June term, 1855, by Judge James. The General Term reversed the non-suit, and on the trial in the Sep- tember term, 1864, before Judge Bockes, the de- fendant proved a clear case of adverse possession and the complaint was dismissed with costs.
An interesting case of great value to assessors in assessing personal property was tried at the May term, 1856, before Justice James. It was the civil action brought by John G. Young and others against the assessors of the town of Hadley to vacate an assessment of the personal property of the plain- tiff's made by Jefferson Jeffers and his associates of the board of assessors in June, 1854. The plain- tiff's had come from Ossipee, N. H., in April, 1854, and taken a contract in the town of Hadley on the Saratoga and Sackett's Harbor railroad. They brought their families with them and established their residence in the town, temporarily, as they claimed. Their personal property was assessed, a tax was levied and the town collector, by order of the defendants, made a distress on their premises and their property was sold. The defendants now brought an action for relief by A. J. Cheritree, attorney. The defendants were represented at the
205
OF SARATOGA COUNTY.
trial by Alembert Pond and Judge Hay. Under the direction of the court the jury found the plain- tiffs were bona fide residents of the town at the date of the assessment, and rendered a general verdict for the defendants.
An interesting case involving the competency of evidence was the civil action of Erastus Davison against Philip J. Powell, tried in our county in 1857. This was an action to recover an unpaid bal . ance for sawing defendant's lumber, at the plain- tiff's mill at Jobville in the town of Stillwater, with a bill o items annexed and verified. The defendant denied the allegations of the complaint as to the days and extent of work; and plead waste of lumber to the amount of from 14,000 to 15,000 feet, valued at from $200 to $300. Judgment was entered for the plaintiff for $108.73. I. C. Ormsby, for plaintiff ; E. F. Bullard, for defendant. A bill of exceptions was filed in the Supreme Court on alleged errors in the admission of incompetent testimony. The General Term held that the defend- ant's answer was merely a negative pregnant, form- ing no issue that denied the correctness of plain- tiff's complaint. It also held that the memoranda of a sawyer kept on boards and copied accurately in a book is a book of original entries, and that the copy is competent evidence. 16 Howard 467.
Lewis DeGroff against the American Linen Thread Company was the title of an action brought by the plaintiff, who was a merchant doing busi- ness in Mechanicville. It was twice heard at Cir- *
9*
206
THE BENCH AND BAR
cuit and sent back by the General Term to the Circuit for trial. It was finally tried at the Jan- uary term, 1857, before Justice Rosekrans. Gen. Bullard was plaintiff's attorney, and Judge Bockes and Deodatus Wright were employed by the defend- ant. It was an action for breach of contract. The defendant, a corporation doing business under the laws of this state at Mechanicville, had in its employ a large number of persons Previous to March 1, 1853, it had conducted a general store and controled the patronage of its employees to a great extent. On that day, the trustees of the corporation leased the store and sold their stock of goods to the plaintiff, one of the conditions being that they should carry the general trade of the employees of the company to the plaintiff; and in case of a failure. the sum of $300 was stated in the contract as liquidated damages. Abriam Fellows, a rival merchant, soon after was elected one of the trustees of the company and succeeded in diverting the trade to his store. On proof of this statement of facts the plaintiff rested his.case. The defendant plead that the trade had not been diverted ; that the trustees had no authority to make such a con- tract and seek to bind their successors ; and, that it was void as against public policy. A verdict was rendered for plaintiff for $375. The judgment was reversed at General Term, but it was affirmed in the Court of Appeals. It is reported in 21 New York Reports 124. The General Term by Justice James, Rosekrans concurring, held that the plaintiff
207
OF SARATOGA COUNTY.
ought to be non-suited and that there were five points in the case either of which was fatal to the plain- tiff. As the case had already been tried three times, Gen. Bullard took the risk of going direct to the Court of Appeals instead of going back for a new trial and non-suit. In order to take the step the plaintiff had to stipulate that he would risk final judgment against him if Justice James was right on any point. Judge A. B. Olin and John Law- rence in the early stages were counsel for the defendants.
Another substantial victory was won by Gen. Bullard in the action brought by Nancy Mors against Elisha Mors, William H. Mors and Henry G. Ludlow. It was brought to recover a wife's il choate dower interest in certain lands in Water- ford, which she, had conveyed away by a· deed to which her signature was obtained under false and fraudulent pretenses made by her husband, Joshua Mors, that he wished to sell his real estate and remove to the west with his family. After securing her signature to the conveyances, he went west and procured a "Chicago" divorce. The suit was brought to trial in the September term, 1858, before Judge James. The defendants were represented by Pierson, Beach and Smith of Troy and had the counsel of Judge Romeyn. The jury found from the evidence that prior to the acceptance of the deed defendants, Elisha Mors and Henry G. Lud- low had knowledge of Joshua Mors' intention to desert his family. That Joshua Mors executed the
208
THE BENCH AND BAR
deed to Elisha Mors July 5, 1856, with intent to abandon his wife and child, and that he secured her signature by fraudulent representations. That Elisha Mors was cognizant to this fraud when he took the deed, and that William H. Mors knew of the same when he took the deed of the premises from Elisha Mors, March 2, 1857. The jury founda ver dict for the plaintiff to endow her of her inchoate rights in the lands thus fraudulently conveyed, and that the amount of her alimory be collected from the property. The Court of Appeals by this decision established the correct principle that a wife can attach a fraudulent conveyance made by her husband with intent to defraud her of her sup port and rights, the same as a creditor.
In January, 1860, Seymour Chase, proprietor of the Ballston Atlas, a newspaper then published at the county seat, by the direction of David Max- well, then clerk of the board of supervisors, pub- lished in it the . Abstracts of Town Accounts for 1859," which the law requires the clerk to print in some newspaper. He charged the county. accord- ing to the then legal rates, fifty cents per folio for one insertion, amounting to $60. He submitted his bill to the supervisors in 1860, and it was audited by them at $30. He accepted this sum under pro- test, and began an action in a justice's court against the "County of Saratoga" for the balance. He recovered a judgment which was affirmed by Judge Crane in the County Court. An Appeal was then taken to the Supreme Court which was heard in
209
OF SARATOGA COUNTY.
General Term in May, 1861. After hearing Charles S. Lester for the appellant; and Seymour Chase, appellee, in person, that tribunal decided that the action was wrongly entitled. Actions against the county can only be brought against the supervisors of the county. It, however, passed upon the mer- its of the action. While the statute of 1847 named . fifty cents per folio as the price of the first insertion of a legal notice, it clearly meant it to be the extent of the price and left in the power of the auditing board to award a lower sum. The super- visors are authorized by statute to audit such claims. They having acted in a judicial capacity, their work is not reviewable by this court. Relief might have been sought by a mandamus against the supervisors. Judgment reversed. 33 Barbour 603.
Actions against sheriffs are frequently brought to recover alleged damages arising from the seizure of one person's property on an execution against another. From the list found in the minutes of our Circuit Court I have selected the suit of Lorenzo Baker against George B. Powell, sheriff, as furnish- ing the most interesting features. It was tried in May, 1861, before Justice Rosekrans and a jury. I. C. Ormsby was plaintiff's attorney, and E. F. Bullard, the defendant's. The action arose from the following facts: Baker, the plaintiff, had a chattel mortgage on a stallion team owned by Rev. John P. McDermott, Romish priest at Mechanic- villa Abram L. Brewster, a deputy sheriff, seized
210
THE BENCH AND BAR
the team on an execution against Father McDermott. While the horses were in his possession under the levy he used them in his private business, and one of the horses died. The plaintiff, as mortgagee, then brought suit against sheriff Powell, alleging that his mortgage interest had been sacrificed through the culpable negligence of Brewster, the deputy sheriff. On the trial it was proven that McDermott was a fast and reckless driver of the team while in his hands, and that Brewster used ordinary care of them while he had them after the levy. The jury found that Brewster exercised the care of the horses required by ordinary prudence, and that they were not injured by him in his pri- vate business. Judgment was entered against the plaintiff for costs.
At the same term was tried the action brought by Charles Neilson against Abraham Post, executor of Israel Post, deceased. The plaintiff's attorneys were Hon. Ira Shafer and ex-judge Deodatus Wright of Albany. The defendant had the aid and counsel of ex-judges Crane and Mckean, and William T. Odell. The action was brought to recover a sum of money lent by Neilson to the decedent, of which he had as evidence a note for $200. The defendant denied that his father, Israel Post, ever executed the note ; and sought to prove that the old gentle- man, several years previous to his death, had divided his property among his heirs, and made his home with one of his sons, and was not in the need of negotiating loans at the time alleged in the
211
OF SARATOGA COUNTY.
note. The plaintiff testified very circumspectly to the occurrence of the loaning of the money and the giving of the note, and the signature was pronounced genuine by many persons residing in Stillwater, who were acquainted with the handwriting of Israel Post. One of his sons testified directly that it was a for- gery of his father's signature; but, under the search- ing and ingenious cross-examination to which he was submitted by Mr. Shafer, it transpired that his self interest blinded his eyes, so that at one exhibi- tion of a recognized genuine signature of his father he said it was genuine, and on another he said it was not. Defendant's counsel objected to this mode of cross-examination, but Judge Rosekrans per- mitted it as allowable under the circumstances, as the witness was making a grave charge against a worthy old man. Mr. Neilson was the well-known author of a "History of Burgoyne's Campaign." Judge Wright then summed up the case in his hap- piest vein, mixing law and satire, argument and denunciation in unstinted terms. It was his last appeal to a jury of his native county, and it was an effectual one. The jury found a verdict for the plaintiff for $356.45 and costs.
Next of importance is the ejectment suit brought by William V. Clark and Clark J. Rice against John O. Lyon. The plaintiff claimed title by con- veyance granted under the patent to John Glenn and forty-four others. The land in suit was a one hundred acre farm in the town of Edinburgh. There was no evidence that the plaintiffs, or their
212
THE BENCH AND BAR
grantors, had ever made any improvements on the place, or been in personal possession other than by deed. The defendant proved title by a warranty deed from his grantor, and a peaceable possession for nearly forty years, during which period his title had been unquestioned, and he had reduced a large part of the farm to a state of cultivation. He claimed that if his grantor was a "squatter" it was unknown to him, and could not at this time work to his prejudice. Joseph Covel, John M. Carroll and William Gleason were the plaintiff's attorneys. The defense was entrusted to Gen. George S. Batch- eller and Alembert Pond. It was tried at the De- cember term, 1861, before Judge Rosekrans, who held that a clear case of adverse possession was established by the defendant's pleadings and evi- dence, and granted the non-suit asked for by his counsel.
On the principle that "Eternal vigilance is the price of Liberty," and consequently their solvency, insurance companies are prone to question the pro- priety of many of their policies on risks taken by their agents when called on to adjust a claim after a fire has terminated the existence of the property insured. Particularly so, if there has anything transpired to furnish a clue to evidence that the party assured had imposed upon the company, or its agent, at the time of the assuming of the risk, or, subsequently, as it may happen. Such was the case assumed to exist when the Indemnity Fire Insurance Company of New York ; the Hope Fire
213
OF SARATOGA COUNTY.
Insurance Company, do. ; and the Manhattan Fire Insurance Company, do., refused to adjust and pay the policies issured by them to Patrick Kelly of Waterford, on certain property in Chicago, which had been destroyed by fire July 13, 1861. A test suit, entitled "Patrick Kelly against the Indemnity Insura :ce Company," was tried in our county, in the September term. 1862, before Justice James and a jury. The plaintiff was represented by Robert Sewell, attorney, and William A. Beach, counsel. The Indemnity Insurance Company had for its at- torney ex-Judge Gilbert Dean, the Hope Insurance Company was represented by Frederick A. Conk- ling and the Manhattan Insurance Company by E. H. Bowne. The plaintiff presented his policy and proof of loss in evidence. The defense was that the fir . originated in the third story of the building in a gambling saloon, which was kept there with the knowledge of the plaintiff and without that of the defendant, or its agent. Secondly, that the goods insured were the property of defendant's son- in law, and fraudulently insured in Kelly's name. Finally, that a portion of the goods belonged to a Boston boot and shoe firm, and were held to be sold on. commission, and that the plaintiff had fraudulently altered his books to conceal that fact. After hearing the evidence, the jury found a verdict for the plaintiff for $2,708, and judgment was entered for that sum and costs by his attorney. This judgment was affirmed, both at the General Term and the Court of Appeals. The case is re-
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.