New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-08-13
ALLEGED BAD FAITH A. 70 LEAsE.
ElfuksIst Lvoa A. Martin Z. R-ys--.

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the principal Object Of the purchase beng 20 obtain,
fhey oon6 q relexsl Of tie lease from the landlord
- hen The time shOuh expire; that they st-Dded TIE
auction At tie Exchange e. which said WheeleT's
esis;e vas sod, AID purchased ssd lesse, paying 80
tbereioF, and recei 81 a. Assignment o. ne esse,
which witt OtheT papers co1lected, they deposited 10
the Mecnsrios' and Traders Bank, subject 70 thei-
joint der that plaintiff paid az 1ali iOT sad ssss,
and slso IL half Of the rent, AM n sddd0n had e.
pended 500 70 render The part u the s,Ory over hs
store, which bad previously been open loft suite
be f0r q dwelling.
HHe alleged that about ihree-nOufs before the esse
would expire the cefeDesni Ar b.. for the purpose
Of dsfraading plaintiff Ob,aed Possession o. the ease
and oiher papers from the bsak although Il bal
egreed The; they should lot draw them out except TO
getheF and applied 70 Mr. lOrilsfd 10 he Own name
for renewal, colceaIng while dong 20 Their JOINT
infeseg and reyre seu:ing % Mr. l.. hat be himself
was s0iely interesfed-snd obtained g ease for
tire YEAR and sfierward claimed that was FOR biz
sole ndiv dual beteht Plaintiff slo alleged ihs de-
fencsnt threatened 70 eject nm from the rensss
LEI MAY ls55 the suit was cornmeBcef ia April, and
asked that Injunction shOuld b Issued restraining
lin from 20 ejecting him; also for Judgment esrab
hshing IN plaintiff equal interest IN such renewal a.
q co-tnanf, and for cost. SC. The injunction was
gran cd.
cemurrer wes put in On the par, Of defendant
the ground Of demurrer beng that thee fscts co not
COZ sttufe q cause u action.
Judge Woodruff in deciding tie demurrer, gave
opinisn at considerable length. On the point Of de-
muIrer the Judge s2id:
"Tbe sis'emeLt IN tie oompl int alleges conduc. on
the part Of the defendant 80 pspaby unjust 70 the
plaintiff 20 grossly in violation Of the confidence
pO@ed u him by the plaintiff, and 90 FAR removed from
what 4 usually deemed fair and upfgh; among men,
that the plaintiff hss relief upsn thee fact, the
rules by which justice i professedly administered
must BE- declared lsT0entsbly imperfect
The Court considers that sufficient consideration
had been given not TO require The agreement % en
deaver jointly 10 obtain reDeTal 10 Be IN writing.
Flsinth was ready 10 enter into the agreement and
defendant hDse bas performed By getting the ben
eft Of Their arrangement.
Beside this there Il an acknO giedged property IN
the good Will Of renewal, although subject TO the
decision Of the Landlord, and the plaintiff has night
70 hold The defendant his agent the latter obtaa
Ing the lease and 70 consider il fraudulent in his TAX
ing y sOely 10 Biz Own name.
Where an akeLt, acting IN a confidential relation,
makes purchase in hi own name, he is deemed 70
hold FOR the benefit Of his principal p Paige, 5sli
II Nesey 29s; Paige, 26s.i
As TO The point whether the plaintiff could have OBJ
tanned the lease he name, Il does not nov De
in defendants Outh even 20 inquire whether tie
Ian dlOrd would have renewed 10 both the plaintiff
had no opportunity 70 apply 70 the landlord.
The following u the abstract Of the Judges opinion
a. prepared by bimtef:
WOODRUFF, J.-Where two persons agree 20 join in
the purchase OF the uDeIpired term Of lesse with
view 10 obtain the renewal thereof and in pursuance
OF such agreement make the purchase and jointly pay
therefor and enter into possession Of tie denlsed
Dr. nses and make improvements ard before the
term exl Tres one Of them csndestDely obtains pOsses-
zion o. the evidence Of title, and by conceaLng the
interest Of the other, and falsely representing himself
to be solely interested obtains renewal OF the lease
TO bimself alone such renewal will be sdjudged to he
for the benefit Of bOlh the tenants continuation Of
the reinal lease subject 70 any additional expense
&c of the renewal All the co tenants Of a leasehOld
have an interest in lbs good will and of them
not avail himself Off 20 obtain renewal for his sepa
benefit. Judgment must be ordered for the plain
tiff on The demurrer, but defendant may have leave 70
withdraw the demurrer and answer on payment, Of
costs.
CLAIM As TO HORSE.
Edward p Beach sgi. David :. Draper
Mr.. ID. on the 5th Of April, 1885, gave TO Mr. b. a
paper that he bad that day entered into agreement
with sad Beach that biz return 10 the United States
repurchase the mare LADY Virgins at $500, provided
he IL then AZ good now, &c. Mr. ID. was al the |
time about going TO Europe, and be had sold the said
mare a. d another, and a wagon &c, 70 Mr. b. for |
$50. The Lady Virgins was seat by Mr. Beach TO
Burbanks stable, and remained on livery four or i've
months. Mr.. ID. returned 10 New-fork August ],
when Mr.. Beach sent him written order TO get said
mare at Burbanks and at the same time requesting
ia the letter that Mr.. ID. would send him check for
he $500. No attention was paid 10 Il by Mr. and
notice sent 10 him OF an intention by Mr. Beach
10 eel the mare bis DE account, OF which he also
took no notice; when Mr.. B. caused the mare to be
advertised al auction and she was sold al Mr. Bur
banks stable for $50 Suit wa brought against MI
d. for the difference; but the judge on the trial nom
suited or dismissed the complaint, and motion was
made for a new tIlal.
This Court considers that the writing OF Mr.. d.
had not been the purchase OF the horse, but an
agreement TO purchase, and although under the CIR
cumslancea Of the case II did not require mutual
writing TO sell, yet il required absolute tender
Of the article purchased. Sending an order TO
veDdee upon a stabe'keeper requiring hun 10 de-
liver a horse If not tender OF the horse sei ana
the mere silence Of vendee when addressed by letter
on the subject does not dispense With actual eRde The
verdte was not bound, being 10 the same place WIN
vendor TO answer the letter, was for the vendor 20
be pr sent or by his agent 70 receive TIE Venaee
ans Xer whether he would comply with the agreement
to repufchase or not; the defendant the yen-
dee bound 10 20 70 Burbanks stable 70 receive OF To
examine the horse, although II vas admitted 70 nave
been in as good condition a. when received by Mr.
Beach. In regsrd 20 the necessity OF actual tender IN
cases Where 10 can Be made the decisions IN ~ Barb
500, and Keenan, 500, are Ia point. The judgment
disuissing complaint must Dc sustained.
SUIT BY A PAsFxGER--sEcURITT FOR COSTS.
SAMUEL r. Gall a. Corue.ius Vanderbilt
To recover damages for alleged nOn-tunllmeut OF
agreement 70 convey plsnth, &c. The ACTON "1s
tined and verdict rendered generally Tor defendant
without the jury noticing the fact that there Sas more
than one issue. Motion 10 made by plaintiff for 8 ne
trial the ground that there was error in submitting
the st issue 10 the Jury al all that although the EVIL
dCnce might sustain the verdict Tor defendant upon
one Of the sues 10 is against evidence upon the other
Second a motion by def ndant for an order that
plaintiff he security for costs il having appeared upon
The Trial that be does not reside witain tue State OF
New oTk butt also Appeared that defendant ana MS
atio.Goy knew al the time that he dli not
qlc following is an abstract of the opinion Of the
Juot e. as pref AIRED by himself:
Woodbury., J.-Secunty for costs may be required
of nonresident plaintiff in any stage OF the action,
while the Il gaiiou is continued by him, and even after
a verdict for the defendant if the plaintiff Is
purseinc the MISTER further in exceptions OF mo-
lions for new trial. This may be done, although tie
defeDdantwas aware OF the plaintiff nonroscence az
the cOmms ncement OF the action.
It,. "a no 10 DELAYS
such security 70 late stage il Is at the discretion OF
IL Conn., IN treat he deaN as waiver Ol the ngh.tO