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 13
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ported in 38 New York Reports, 322. Subse- quently, Kelly received judgments against the Man- hattan Insurance Company for $2,946. 72; and against the Hope Insurance company for $5,276.57.
In the year 1861, one Isaac Baker, a judgment debtor, was committed to the county jail on an exe- cution against his body. Subsequently he executed a bond to Sheriff Powell, with William F. Row- land, surety, conditioned to pay the judgment against him if he absented himself from the "lim- its" until discharged therefrom by law. The sheriff, understanding that it was a judgement recovered in justice's court, filed the petition and bond and released Baker, who at once absconded. Powell, finding that it was a judgment in the Su- preme Court, then began a suit on the bond against Rowland by Chapman & L' Amoreaux, his attor- neys. An answer was filed by C. S. Lester, defend- ant's attorney, pleading that Baker's was a volun- tary escape with the consent of the sheriff. The action was tried at the January term 1863, before Justice Platt Potter. The jury found that the sheriff was blameless in the matter, and judgment was rendered in his favor for $296.40 damages and costs.
The suit brought by Antha A. Wait against Joseph R. Wait, tried at the January term, 1863 ; and of the same plaintiff against David W. Wait, tried at the same term, cover about the same grounds, and may be embraced in the same para- graph. The former was brought to annul an as-
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signment of property made by Antha A. Wait to Joseph R. Wait, on the ground that it was exe- cuted through fear of her husband, David W. Wait. A verdict was rendered for the plaintiff on the trial. At Special Term before Justice Potter, the same month, in another action between the same parties, a decree was entered setting aside a deed executed by Antha A. Wait to Joseph R. Wait recorded in Book 92 of deeds, page 377, on proof of the same state of duress. E. F. Bullard was attorney for Mrs. Wait, and John Brot herson and Clement C. Hill for the defen lant. The action brought by Mrs. Wait against her husband was to obtain a divorce a mensa et thoro, on account of alleged excessive cruelty on his part, rendering it unsafe for her to live with him. Mr. Bullard was her attorney in this action, also. The defendant's attorneys, John Brotherson and Clement C. Hill, plead a general denial, and set up a counter claim for a divorce a vinculo matrimonii from defendant, alleging that she had proved unfaithful to her mar- riage vow of chastity. The defense was ignomini- ously routed on the trial, and the jury rendered a verdict for the plaintiff for the relief demanded in her complaint. The court entered a decree setting aside to her use her personal estate and certain articles of personal property, named in the decree, and ordered that the defendant execute a bond to pay the defendant seventy dollars yearly as ali- mony, in half yearly payments. This he entirely neglected to do, and, on measures being taken to
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compel his performing the same, he found Jones- ville to be an unhealthy section and since 1863 he has been "watching and waiting over the border," residing at Harlow, Frontenac county, Ontario, excepting when making surreptitious visits to the States. An execution against Mr. Wait having been returned unsatisfied, Mr. Bullard had George L. Terry appointed receiver in proceedings supple- mentary, and commenced a suit in his name against William Wait and John Martin to collect a note held by David W. Wait against William Wait, originally drawn for $3,900, on which $2,500 was yet due. The defendant, William Wait, by Beach & Smith his attorneys, plead payment. John Mar- tin lived in Canada and was not served with per- sonal process, but legally by advertisement. The suit was tried at Special Term before Judge Bockes September 10, 1864, and a judgment was entered for plaintiff for $1,538.59 damages and costs. The General Term affirmed the judgment, but the Court of Appeals granted a new trial September 29, 1871. The second trial was heard at the Sara toga Circuit, May 20, 1873, before Justice Bockes with a jury. After hearing the testimony for the plaintiff, the defendant by J. S. L' Amoreaux, moved for a dismissal of the complaint on the grounds : That the plaintiff had failed to prove a cause of action. That the proof failed to show any evidence of fraud on the part of William Wait, or any proof of fraud on the part of any one in the transfer of the note. The motion was granted and
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judgment was entered for the defendant, William Wait, against Terry, receiver, etc. This judgment was affirmed at General Term and in the Court of Appeals, and thus the matter now rests. On the trial before Justice Bockes, Wait produced proof that he had paid the note to Martin, an entire stranger. On the second trial no such proof was offered. A judgment by default was entered against Martin, on default of appearance.
Some men never appear to be happy unless entangled in the meshes of a suit at law. Such an one appears to have been the late Abraham Best of Clifton Park. He had as strong a constitutional aversion to paying taxes as do the noted Smith sisters of Glastonbury, Connecticut. In the year 1863, Adam V. V. Pearse was collector of the school district in Clifton Park in which Best resided. A tax warrant having been placed in his hands on which a certain amount was set opposite the name of Best, he called upon him for the amount at his residence. After making some querulous objec- tions, he invited Pearse into his house and took him to an upper room. He there left him and went out, locking the door after him. After waiting in vain for quite a time for his return, the collector raised a window and jumped to the ground. He brought a civil action for an assault against Best which was tried at the January term, 1864, before Justice Platt Potter. George G. Scott was plain- tiff's counsel, and J. Summerfield Enos appeared in behalf of the defendant. A judgment was entered
10
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against Best for $50 and costs. Soon after this, he was adjudged a lunatic on the petition of his re- latives, and subsequently he died at the Marshall Infirmary in Troy.
Mention was made in a previous chapter of the indictment against the Whitehall and Waterford turnpike company for maintaining a public nuis- ance, and how that the last gate on the road was demolished by a mob. The stockholders having abandoned their old style and name and re-incor- porated under the general law as "The Waterford and Stillwater Turnpike Company," a proceeding was instituted by an action in the name of the People of the State of New York to annul their. assumed franchise, and to declare the road leading from Waterford to the village of Stillwater along the west bank of the Hudson river to be a public highway. The People were represented by Attor- ney- General Daniel S. Dickinson, Charles S. Lester, John O. Mott and C. A. Waldron. The attorneys for the company were James P. Butler and Edgar L. Fursman. The action was brought to trial before Justice Platt Potter at the January Circuit, 1864. The jury found that the turnpike was not constructed with a hard roadbed, or with ditches on each side, as required by law, and rendered a verdict for the relief demanded in the People's complaint with costs of the action. The directors of the Turnpike Company sought to reverse the judgment entered on this verdict but it was affirmed
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in' the Court of Appeals, January, 1866. It is reported in 2 Keyes' Reports 327.
The action brought by Harvey Losee against Coe S. Buchanan, Daniel A. Bullard, C. C. Clute, J. W. Clute, J. D. Clute and the Saratoga Paper Company was closely contested by all the defend- ants. The suit was brought for the plaintiff by Hon. Alembert Pond of Saratoga, and Judge Par- ker of Albany. The defendants Buchanan, Bullard and the Paper Company were represented by Gen eral Bullard and Messrs. Beach & Smith, the de- fendants Clute Brothers secured the services of Hon. Judson S. Landon of Schenectady. The res .gesta of the action was the damages done to plain- tiff's buildings by the explosion of the rotary bleach boiler in the Saratoga Paper Company's paper mill February 13, 1864, whereby pieces of the boiler were thrown through plaintiff's adjoining struc- tures. The defendants Buchanan and Bullard were the trustees of the company, and the Clute brothers of Schenectady were the makers of the boiler. It was brought to trial in the January term, 1866, before Judge Platt Potter and a jury. A non- suit was entered by the court as to the Clute Brothers, they having proved satisfactorily that the boiler had been duly inspected and pronounced sound. The plaintiffs relied on the dicta of the Court of Appeals in Hay against Cohoes company (2 New York Reports 159) to sustain their points; particularly as it was an opinion adopting the points prepared in that case by General Bullard,
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who prosecuted Hay's case to a successful termina- tion. A verdict was rendered against the other defendants for $3,420. The General term reversed the judgment of the Circuit, holding that negligence must be proved, as the defendants stood behind the inspector's certificate that their boiler was sound, and granted a new trial. It was had in the January term, 1867, before Judge Rosekrans, and the jury found that the paper company were guilty of negligence and rendered a verdict for the plain- tiff against it for $2,703.36. Judgment for costs against the plaintiff was entered in favor of Messrs. Buchanan and Bullard. Another appeal was taken by the plaintiff and the General Term reversed the whole judgment. It was finally settled by the Court of Appeals affirming the judgment as to Buchanan and Bullard, holding that trustees are not personally liable for their principal's acts, and also affirming it as to the Paper Company's liabil- ity. It is reported in its different stages in 61 Barbour 86, 42 Howard 385 and 51 New York Reports 476. Suits were also commenced against the Saratoga Paper Company for causing the death of a Mr and Mrs. Jeremiah Dwyer by the said explosion. They were entitled Dwyer, admr. agst. Saratoga Paper Company and William McNamara, admr. agst. the same. They were tried at Circuit, under the foregoing rulings of the higher courts and a verdict of $1,000 was entered in the first and $2,393.37 in the second action. The same attor-
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neys appeared in these suits as in that brought by Mr. Losee.
The action brought by Oren Humes, a Greenfield farmer, against his brother agriculturalist, Chauncey L. Williams, is deserving of notice from its singular feature of damages as alleged in the complaint. It recited that the defendant, in the summer of 1866, over-stocked a ten acre lot on his farm through which a small stream passed to the plaintiff's farm, and thereby caused the water to flow into plain- tiff's close roiled, impure and unfit for use for his cattle to drink. This singular issue of riparian proprietorship was brought to trial before Justice Rosekrans at the January term, 1867. The jury found a verdict for the plaintiff, assessing his dama- ges at five dollars. John W. Crane was plaintiff's attorney, and L. B .. Pike for the defendant.
For the last ten years there has hardly been a term of either the civil or criminal courts held in this county at which some issue in the "Sweet family feud " has not appeared for trial. The first action in this "Pandora's box" was that tried at the September term, 1867, before Judge Rosekrans, in which Mary S. Van Deusen sought to eject her brother, Sylvester Sweet, from a certain farm in Moreau. They were the children of one Sylvester Sweet of that town, who died in 1866. The plain- tiff claimed under a devise contained in her father's will, dated September 1849. The defendant replied that he was in occupancy as tenant of Henry Jaco- bi, son-in-law of Sweet, deceased, who claimed title
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under a deed alleged to have been executed by the decedent, April 20, 1864. The will was not disput- ed. The plaintiff replied that this deed was exe- cuted by her father when he was non compos mentis. Evidence was given to prove that decedent was insane from 1862, and that a commission of lunacy was granted in 1865, on the report of which Judge Hulbert had declared him to be a lunatic. The court denied the motion for a non-suit, but charged the jury to find for the plaintiff if they found the decedent to have been insane in April, 1864. A verdict was given for the plaintiff. The judgment was affirmed in both General Term and the Court of Appeals. See the reported case in 51 New York 379. Lewis Varney and Judge Hay were plaintiff"'s attorneys, and Sweet and Jacobi's claims were ably sustained by Messrs. Pond & French, and Judge Brown of Glen's Falls.
Another action having its animus engendered by this Moreau "vendetta " was that brought by James Le Baron against Howe for damages sustained to his character by reason of the false and slanderous stories uttered by Howe, to the effect that Le Baron had burned his buildings, which were in- sured in the Watertown Agricultural Insurance company, with intent to defraud the insurance com- pany. The trial occupied the whole of the May term, 1869, before Justice Bockes. The jury found a verdict for the plaintiff for $25. It was the last cause tried by Judge Hay, at our Circuit, who was associated with Mr. Varney for the plaintiff. The
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defendants attorneys were Judges Mott and Brown of Glen's Falls.
The suit of William P. Clothier, of Corinth, against Adriance, Platt & Company, of Pough- keepsie, was brought under the Code to have a cer- tain note drawn by him declared void. J. W. Hill was his attorney. Mr. Clothier claimed that he signed the note under fraudulent representations made by a man who was acting as the defendant's agent in selling mowing machines, being induced to sign a blank note when he supposed it was filled in with a small sum. This swindling of farmers'by a set of traveling sharpers has been quite prevalent for some years past. Men who would not lend their name to aid the credit of a struggling honest neighbor have readily signed the various "sugar coated" notes presented by strangers with oily tongues and the impudent pertinacity of the Evil One. The agent filled up the note with a sum sat- isfactory to his plans and passed it to his princi- pals. The action was brought to trial before the September Circuit, 1867, before Judge Platt Potter. Clothier was non-suited on motion of Messrs, Cham- bers & Pomeroy, the defendants attorneys. It was sustained in the Supreme Court, but the Court of Appeals sent the action back for a new trial. It was re-tried before a referee, who reported in Mr. Clothier's favor. The defendants appealed and the General Term, in May, 1876, reversed the judgment; Justice Bockes dissenting and holding that an instrument fraudulent in its inception can never
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acquire a legitimate nature. Mr. Hill has now token another appeal to the court of final resort.
Of a similar nature was the foundation of the civil action brought by Douglas Cheesebrough against Thomas H. Tompkins. Mr. Tompkins, who was a farmer living in Greenfield, near Glen Mitchell, was induced by one Brown, agent for George W. Palmer, to accept the agency for the sale of a patent mowing machine knife grinder. It was, however a patent swindle. The farmer was induced to sign a certificate of agency promising to pay a certain sum after he had sold a certain number of machines. By an ingenious typographical device, the certificate was so printed in blank that a portion of the right end of it could be cut off and leave a promissory negotiable note. Mr. Cheesbrough, who was a merchant in Saratoga Springs, purchased among many others, the note purporting to have been signed by Mr. Tompkins ; Brown endorsing Palmer, the payer's name. In common with other farmers who had allowed their curiosity to get the better of their common sense in signing these con- tracts, Mr. Tompkins refused to pay the note. The action brought by Mr. Cheesbrough against him was regarded in the nature of a test suit. Hon. John W. Crane was plaintiff's attorney and Joseph A. Shoudy defended Mr. Tompkins against the unjust claim with the counsel of Hon. William A. Beach. It was brought to trial at the Septem ber term, 1868. Brown, the "agent," was con- spicuous for his absence. Mr. Palmer, in his tes-
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timony was uncertain that he ever authorized Mr. Brown to sign his name in the negotiation of this note to the plaintiff. Mr. Cheesbrough was closely cross-examined by Mr. Beach. To the question, "At the time you purchased this note did you know it to have been obtained by fraud," he de- clined to answer. To the question, "Did you not know it to be a 'mowing machine grinder' note," he also declined to answer. Mr. Beach then asked for a non-suit on the ground that no authority had been shown for Brown to endorse the note for his principal ; and, that Mr. Cheesbrough by his refusal to answer the above questions showed that he was not a purchaser in good faith. Justice James non- suited the plaintiff, and he was upheld at General Term and by the Court of Appeals. The holders of the "bogus notes " throughout the county found it impossible to collect another dollar, and the "scrip" is now valuable as paper stock at the market quotations.
The action of the First National Bank of Balls- ton Spa against the Insurance Company of North America was one of a series of actions brought to recover policies issued by leading insurances com- panies upon the property of the Pioneer Paper Company. The Bank was the assignee of the policies, holding them as collaterals to a loan. These suits were at the terminus of a long litigation: among the stockholders of the Pioneer Paper Com- pany. To give the history of this litigation in the State and United States courts would swell our
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volume beyond its intended proportions. It is reported under its various titles in 57 Barbour 127, 568 and 583 ; 59 Barbour 16; 62 Barbour 468 and 36 Howard 102. For our purpose it is sufficient to state that about 1860, Coe S. Buchanan, Elisha Comstock, William Wilson and Solomon A. Parks commenced the manufacture of paper at West Mil- ton under the name of the Pioneer Paper Company. For a time they were successful, but the influx of of wealth was too much for the ambitious brains of Comstock and Buchanan and each sought to drive the other out of the concern. Comstock by a decree of the courts got possession of the mill and leased it to C. W. Weeks and Abijah Com- stock. During this time he negotiated the loan at the First National Bank. Buchanan secured a reversal of the decree and was put in possession. A judgment was recovered by the Bank on its loan and Electus Dye, a deputy sheriff, went to the mill on a certain day with an execution. With Elisha Comstock he essayed to watch the mill during the night, and dismissed the regular watch- man. During the night the mill was destroyed by an incendiary fire. Dye and Comstock were in the company's office, a few rods distant from the mill. The insurance companies held that the levy and dismissal of the watchman violated their policies and refused payment. At the trial in the Septem- ber Circuit, 1870, before Justice Bockes, a non-suit was entered. J. S. L'Amoreaux was attorney for the Bank, with Beach & Smith as counsel. Judge
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Parker was the attorney for the defendant. On appeal to the Supreme Court, it was held that a levy by a sheriff does not absolve a party insured from maintaining the watch demanded in the policy, and that the deputy sheriff in an office two rods away from the mill did not fill the duty and office of watchman. 5 Lansing 203. A further appeal was carried to the Court of Appeals and the non- suit was sustained. About this time the defunct Pioneer Paper Company was declared a bankrupt by the United States district court. Their mill site and privilege was sold by J. A. Shoudy, assignee in bankruptcy, to Hon George West.
The doctrine of "ancient lights" and "highway privileges" are as old in the common law as the rights of riparian proprietorship to the waters flow- ing in a stream. The rule in each instance, to use the quaint language of Blackstone, dates back to the time "when the mind of man runneth not to the contrary." Rival hotel proprietors at fashion- able watering places are as jealous of their rights now as were the first mill owners in the early days of our country. An attempted invasion is sure to be fought in the courts, and sometimes by force. Such a cause of action arose in Saratoga Springs in 1869. Warren Leland was the owner of the Grand Union Hotel, and Henry H. Hathorn of Congress Hall. Mr Hathorn had purchased a building on the east side of Broadway, and sepa- rated from his hotel by Spring street. He fitted a ball room in the second story of the building and
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constructed an iron bridge from the third story of Congress Hall over the street to the ball room. Mr. Leland, who had paid an assessment of $1,040.35 for the opening and grading of Spring street, deemed this an invasion of his vested rights, particularly as the bridge was directly in front of and obstructed the view from his hotel. He began an action in Westchester county, by Robert Cochrane, attorney, on the relation of the People against Mr. Hathorn. Charles S. Lester and Samuel Hand, for the defend- ant, moved to change the venue to Saratoga county. It was denied at Special and General Term in the second judicial district, but was granted by the ยท Court of Appeals, March, 1870, on the ground that actions for damages to real property must be tried in the county in which it is situated. See 42 New York 547. The action was then noticed for trial at the January Circuit, 1871, before Judge Rose- krans. Attorney General Champlain was repre- sented by William T. Odell, and Mr. Leland by Mr. Cochrane. On motion of Mr. Lester the com- plaint was dismissed with costs.
The action brought by William A. Dunn against Samuel H. Luther and Henry Luther, as survivors of Luther, Brother & Co., distillers, involved the validity of a verbal promise, made by a debtor set free under the United States bankrupt law of 1867, to revive a debt created before the decree in bank- ruptcy. The complaint alleged that on the 16th day of November, 1864, the plaintiff loaned to Lu- ther, Brother & Co. at Ballston Spa, the sum of
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$1,300 ; taking therefor the note of Luther, Brother & Co. drawn payable to the order of Seymour Chase (the other member of the firm) and endorsed by him to plaintiff, who then became and still is the owner of the note. Chase died March 31, 1866, and Henry Luther was not served with process. Issue was joined by the defendant Samuel H. Luther, by L'Amoreaux & Dake, his attorneys, by an answered verified November 3, 1870, setting forth that defendant was bankrupt and insolvent Nov. 27, 1867, and that by a decree in bankruptcy in the United States District Court he was dis- charged from all debts and claims against his estate which existed Nov. 27, 1867, and that plain- tiff had due notice of such proceedings. It was brought to trial at. the September term, 1871, before Justice Bockes. It was assumed at the trial that the plaintiff's complaint was true, except that "as surviving partners the defendants are justly in- debted to the plaintiff' in the full amount of the note from November, 16, 1864." The note was introduced in evidence, and the plaintiff rested. The defendant offered a copy of his discharge in bankruptcy in evidence, and the plaintiff's attor- ney, Col. Odell objected on the grounds that no jurisdiction is shown in the District Court ; that it shows no jurisdiction over the plaintiff on the debt due him from the defendants ; and that the certifi- cate is deficient in facts requisite to be shown. The court received the evidence and the defendant rested. The plaintiff then offered to prove that he 10*
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never appeared in the bankruptcy proceedings, nor proved his debt ; that Samuel H. Luther fraud- ulantly concealed from his assignee certain real estate and property in Ballston Spa ; and, that after his discharge Samuel H. Luther, on or about September 6, 1870, promised to plaintiff to pay him the said debt. The offers were objected to by Mr. L' Amoreaux and ruled out by the court, who directed the jury to find for the defendant.
The plaintiff then carried an appeal to the Gen- eral Term on the points made in a bill of exceptions stating the facts, offers, rulings and exceptions had and taken at the trial and, further, that a discharge in bankruptcy does not make the original contract void -and, that the alleged promise to pay was not a new cause of action. The defendant's points were that this court has no power to determine the validity of defendant's discharge ; that the discharge can only be attacked in the court that granted it ; that the plaintiff gave no notice of his intention to im- peach the defendant's discharge ; that the plaintiff was bound to specify in an amended complaint, or by a reply his grounds of avoidance ; that if any debt existed against S. H Luther it was by virtue of the new promise : and, that the new cause of action should have been set forth in the complaint. The General Term sustained the judgment and a further appeal was carried to the Court of Appeals. That tribunal reversed the judgment and ordered a new trial on the ground that the evidence contained in the plaintiff's offers should have been passed
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