The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-06-04
THE COURTS.
Important Decisions by the Common
Pleas, General Term.
A GRAND JURYS INSTRUCTIONS.
The Suit for q Receiver Of the Wabash
Railroad Company.


The General Term OF the Court OF Common Pleas
handed down yesterday number OF decisions IN
cases argued the last term OF the Court Among
these decisions, perhaps the most Important was
that IN the suit OF Lydia A. Mckinley against the
Unrsd States Life Insurance Company Of this city,
aud in which opinions are written BY Chief Justice
DAILY and Judge Larremore. The defendant issued
two policies OF insurance upon tho lilo OF Charles L.
Mckinley for the benefit OF his wife the plaintiff, upon
joint application in writing The Drst policy was
dated April 49, 1866 for IS, 00o and the second Janu
airy 10, Is II. and paia policy issued for 500
the dividends then due on the arst policy. The APP
p,icatlons contained agreement whereby all
moneys paid for premiums TO be forfeited II any
untrue fraudulent allegations contained in the
application or In answer TO questions annexed.
Mckinley died the 1lth OF April, 1873, at
Celina, Ohio but tho defendant refused to
pay the amount insured on the ground
that fuse answers had been given TO certain ques-
tons respecting the health OF the parents OF the de-
ceased and his physical condition. On she trial
Of the suit brought to the policies judg-
obtained against The defendant for So GOT 49,
from which and the denial Of motion for new trial
an appeal was taken TO Common Pleas, General Term
II claimed that mckinley was man OF intemper-
ate habits died 1875 of diseases oil the
stomach and lungs caused by intemperance. Judge
Larremore In his opinion alter disposing OF numer
Gus exceptions taken the case. in concluding,
shys:-lhe nterest we'll as the merits OF tue case
centre in the applicants response TO question No. -
that Is habits of lie were temperate. The principle
involved in the decision OF tins question is one oil cx
treme delcacy ana Importance. IL Is not claimed
that the mere OF alcoholic siimuants constitutes
intemperanoc. Nor have we been referred to any
liked rule or standard OF such general application,
that plainly discover the point where temper
euds and inebriety beg,ns- Necessarily then
OF this character must be determined upon
It's own particular facts. Tho indulgence may pro-
uuce drunkenness IN A, while repeated indugences
full affect b. II would thus appear that the test be-
NH - mn v IL IN e0p
each individual by the use OF alcoholic liquors The
court below recognized this principle and LEFT It to
the jury aetermine upon all the evidence. whether
Or not Mckinley at or about the time Of his appica-
ton for insurance was person OF temperate habits
There nothing in the charge OF the learned Judge
calculated 10 prejudice or misiead the jury. The do
icndants counsel takes exceptions that portion Of
which predicated the fact OF McGinley's intcmper
ate HABITS upon his capacity TO attend TO business.
and his indulgence to such an extent as would impair
his constitution or general healrn. These facts were
but the ndica oflhc main fact which was lett entirely
and exclusively TO the jury. have examined all the
EXCEPTIONS the case and the authorities ny which
they are sought TO DO sustained. and am 81
opinion that they should be- overrulcd and
Judgment OF ahrmance ordered" Cher Justice
1ay very elaborate opinion comedies with Judge
Larremore in the result The Chiei JUSTICE IN bis
opinion reviews the evidence a5 to McGiney's habits
intemperance at great length, and says that there
Is conflicting evidence on the point OF his habits at
thu OF the Issuance OF the policy and although
he thinks the weight OF evidence Is against the plain
nn on the question OF McGinieys habits OF drunken
the Court cannot say that their verdict shows.
sucn utter disregard OF evidence that was over
wneIming, paIpable and Irresistible. that u should be
a fragrant OF injustice. In regard 10
Tue question 10 what constitutes intemperance His
honor thiuks tnat man Is not incorporate who na-
bituay drinks every day unless ne docs SO to such
an extent as 10 impair his constitution or general
health He thinks the charge OF the judge below
perfectly fair and impartial and that the excep-
ton tina, respect Is not well taken.
An important decision was also rendered by the
Co.rt Judge Larremore writing the opinion, the
ssse Of Rensselaer, H. Winchen against tue Knicker- |
booker Ice Company II seems that under an agree /
entered into bstween the parties the 23d day
OF November, 1869, the defendants sold the plaintn
600 OF Ice at So 30 per not ton the same TO be
rlty raa nna0I tltna nj 4 INN NAurv nm
January, 1870, December, 1873 IL agreed that
IN the defendant was unable 10 lay up iuli sup
ply IL bound 10 deliver and supply such
proportion OF the 1000 tons as the quantity Of ice
laid up should be 70 the defendants iuii supply Ia
1870 the defendants representation thai would
be unable to deliver the fuil 1000 tons due Tor
that year, that 5s7 would DO the
ceIve, the latter signed agreement accepting the
bS7 tons the belief OF the dsendauts inaoiiny 10
vdea that each contracting party should pay for
OF sl00 Tor what he or should fall to receive
supply. 1t appeared that The defendant LAID up y
larger quantity OF ice than represented, whereuPon
Tue suit was brought 10 sci aside the agree
ment OF May !, 1870, on tho ground that u was In
duced BY fraud claiming damages Tor the
toe OF November 20, 1863 On the trial
WAC shown tbat The piantin, IN audton 10 the 5s7
tons, hsa received and paid Tor 2l7 50 tons OF
nj the rate OF SIS and $40 per tou. Judgment was
rendered his favor Tor s4o7l 81, from which judg
incnt the defendant appealed. Judge Larrenore, IN
elaborate opinion, overrues the exceptions taken
az the time and ahrms The judgment In favor OF the
defendant.
Among the othcr decisions was one in the suit OF
Nathan Suiy against tue new Ork Nuti0pal Ex-
cnange Bank the plaintiff was the owner Of twenty
nve SHARES o fu paid stock OF the bank, and the
26tn OF December 1876, tho bank directors by reso-
luton reduced Inc capital stock from $500 900 10
S3O0OOO by returning 100000 TO the Stockholders.
Tue resolution further provided that the shareholders
should be required TO reinquisn two-nfhs OF their
shares, raa. The stock books being then closed.
except Tor transfer OF stock or Tor scanceiiatou Tho
painuf, on the 20th OF December, 1877, rendered |
his certificate Tor twenty i've shares ana offered /
TO rclinquish two-nitns ten shares, receiving
tho par value, amounting 10 $1,000, anu the
issue Of now certincatc for fifteen shares, |
wnch, however, the bank refused. On tria Judge
Van Hoesen gave judgment Tor the plainun Tor
s2a7y IL The General erm Judge Larrenore writing
the opinion, rendered decision modifying the Judg
IN spects out Otherwise sf II. Ju1go
Larremore IA bis oplnion says tue questions involved
IA The appeal arc hrst the right o. the National Ex-
change banK beng association, to retain surplus
the moneys received for stock, which Is subsequently,
retired; aud second the right TO recover damages IN
action claimed 10 be purely equitable IN It's nature
Judge Lnrremoro thinks the OPINION Of the special
Term settles tno lrst pcin ana be also decides the
second point Va the piainuns avor but TO give yudg-
ment Tor tho whole twenty-five shares the Judge
tnnks would DO inadequate and UNJUST TO the other
Biockhoiders Ito therefore modincs the Judgment by
directing tho bank 10 issue TO him fifteen shares Of mo
stock.
Isaac A. Chomc some time ago patented a certain |
Improvement In Dertns obviate sickness,
and IN the iaii OF 1879 employed Samuel Herbert to
procure capital 10 carry on and extend the manu- |
lacturo sale OF articles under tho patent right
HcrUert introduced the patcntee to Thomas y Dick,
and ia February 1874 the patentce transferred one
quarter interest parties mentioned, and an me
parties agreed ~ transfer their interest 10 certain
trustees, which accordingly done. DICK aud |
HerUert also agreed 10 pay the patentee S2vOO Tor
ther interest IN the patent IN monthly instruments OF
500 each until $500 snvuld be PAID alter winch the
amount OF the instalfnents might be reduced, but
a monthly payment O not less than 500 |
10 be continued until tho entire amount |
was pam. Only s3I0 OF this amount paid aud |
the patcntce brougnt suit and recovered Judgmcnt |
for the unpaid instruments to July, 1875. Tue de- |
fcndants, Dick ana Herbert, appealed ana tue case |
was argued before the Common rIeas, General Term,
nj considerable length. That Court, Judge |
Larremore writing the opinion, yesterday rendered
decision affirming the judgment Of the Court below
and overriding all tue exceptions taken nj tho trial.
III. Walsh the i
New York Floating Dry Dock Company the |
judgment OF the Court below, dIsmissing the |
complaint, is affirmed by the General Torn. |
The plaintiff 10 the lessee OF pier As East |
RIVER, ana sued for wharfage because floating dry
DOCK moored in the slip Chef Justice Daiy, |
writing tho opinion Of tho Court, holds that the
plaibl,f mas no right 10 collect such wharfage but