The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-09-25

mn'y days. WIN h'ereS' "' 'Se sA pos Hsn ="
On the trial before the referee The defendant offered 70
prove that Rvas government made certain decree,
q certified copy Of which predHced duly aathenl-
Gated that this decree promulgated the public
square Of Granada (thc place peomul
gatcdhe residence Of the govcrnmcnt) about tho 18th
OF February, 1855. That tho goverhment which made
tho decree was tho government At the imc and had full
power and right 70 make such decree and that such de-
had been carried effect The referee, however,
excluded the evidence and, we think, enormously.
Had the decree been admitted IL would have shown,
ut least have tended to show, that at the tma OF
making the contract charter the company amt all
its privileges had without the knowledge OF the deend
ants, been "revokcd and annulled, and the company
itself been dissolved and abolished Nwould IN other
words have shown that the thing contracted for had sub
sntally existence. What the defendants bought,
agreed 10 buy hundred shares OF stock In living
the remaining assets Of dead company in the hands OF
q receiver In the case Of Benedict VS.. Field 16 New
York Reports 595 the Court Of Appeals held that upon
executory contract for the delivery Of goods, " be
paid for arrival in the notes OF third party, that
party becomes nsoven before delivery the seller
bound deliver the goods and accept the notes. although
the notes at the time may not BIZ entirely worthless So
that stating the transaction in another FORM
tory purchase Of notes to be delivered paid for In goods
at future time, the authority precisely in point The
notes Of individual and the stock certificates OF
pany equally chosen in action, and, far nsol
yency il concerned stand on the footing The fact
that the insolvency in the present occurred before
instead Of after the date OF the contract make diff
ference the defendants had knowledge Of the
cation until subsequent period The report OF the referee
and the Judgment entered thereon should be set aside
and new trial had-cos,s TO abide the event
REPORT OF REFEREE
Wigiam Dit6lee u.s. Henry Na,il1rd-- ROOSEVELT j.
Although the sum awarded by the referee $3.50
excessive in ITSELF is OF proportion TO the damage
proved. We think the referee, while justly rejecting
much Of the claim founded on the alleged injury
resulting from heat and from the condensed steam which
meme rat he OF he e
had constructed against the defendants wall instead Of
building wall Of his has nevertheless unconscious
amount allowed by him for the alleged injury and annoy
in other respects, from the soot smoke steam and
vapor which came from the chimney and steam escape
pipe into the yard and back windows of plaintiffs
house, We are reluctantly therefore, compelled 70 set
aside the report against the weight of {adssble evil
dence and TO erder new trial on payment Of costs Or
der accordingly.
SALE BY ExECUToRY CONTRACT.
Nicholas L. Demarea and others Robert Ray Ersc,l
tors, and others.-RoosEyEr, J.-This Is q agreed
upon and submitted under the code without plead
ngs arguments We have given all the "considera
tom which, without the aid Of counsel, could
yencnty bestow, and have come 70 the conclusion
that the points insisted by the defendants well
founded Mr.. Richard Ray, by his will authorized the
executors If they should consider advisable to sell
such number Of lots not exceeding twenty Of rs by 100
feet might be necessary to pay charges and
ments A sale may be made well by executory
contract as Dy deed oil present bargain and sale The
contract in question: therefore, being authorized by the
WILL was TO the extent Of the number Of square feet
braced in and subject TO the contingency Of its possible
fulfment an execution Of the power, especially it,
in this case the vendee let into actual possession
subsequent purchasers Glly informed OF the fact
The deed in such case when delivered, relates back to
the contract and has the effect against subsequent
purchasers with notice it had been delivered the
day Of the sale The defendants knew that the OF
the executors had been conditonally exhausted They
took their deeds therefore, subject the chance Of their
being part imperative, in the sales made 10 their
predecessors should be consummated by fulment of
the conditions Judgment for plaintiffs, declaring their
right and title to be paramount to those of the defendants
and that the deeds TO the plaintiffs egal valid and
binding and have conveyed to and vested in the plaintiffs
the title Of the lots therein mentioned in fee.''