Responses to Questions Of General
Public Interest in the Year 1898
"R.W."__asks whether an action
can be maintained in this state
where in another state there is
an action pending already
between the same parties and for
the same thing.
The pendency of the prior suit
does not take away the right to
sue in another state; but a
judgment obtained in the one
will abate the other when duly
proved.
______
"M."__asks whether an alien who
has never been naturalized but
resides in this country can take
and hold land under a will, as
against a native born citizen
who would otherwise be the
heir-at-law.
Until 1875 such an alien could
not acquire title by devise to
real estate. Since the enactment
of the statute in that year
entitled "An act to enable
resident aliens to hold and
convey real estate such an
alien, provided he resides not
merely in the United States, but
in the state of New York, can
acquire a title by legacy.
However, the language of the
statute is: "If any alien
resident of this state who has
purchased," etc. The question
arose in the case of Stamm vs.
Bostwick whether the "purchase"
includes a devise. it was held
that a devise is included within
the meaning of the word: and
also that where lands are thus
obtained such lands may descend
to heirs who are either native
born or aliens.
______
"Victima" asks:__"Can a landlord
take successful criminal
proceedings against a tenant who
by false representations gains
possession of a floor of a house
newly painted and in good
condition; fails to pay rent;
changes the painting of a room
without the landlord's
permission, thereby injuring the
looks of the entire floor; ruins
the hall ceiling by overflowing
the sink, on the first week of
occupancy; studiously avoids
meeting the landlord, and in
every respect fails to comply
with the written conditions,
rules and regulations?"
For the entry a criminal action
will probably not be available.
As to the damage done. I judge a
prosecution for malicious
mischief can be maintained.
Pupil (1) It is not usual for a
court to set aside a verdict on
its own motion. (2) Where a
lawyer unskillfully manages a
case, or is negligent of his
client's rights or interests, or
in any way willfully or
negligently oppresses his
client, he may be made liable in
damages to his client, and may
also be disbarred from practice.
(3). "Shysterism" is always a
good ground for disbarment.
______
"J.H."__submits the following:
"A lady gets a divorce from her
husband with this clause in the
decree: The lady can marry again
if she wishes, as if the husband
was actually dead, but the
husband cannot marry again until
the wife is actually dead. The
husband within a year's time
goes to Jersey and marries
again. Is he not a bigamist
under the laws of New York
State? or is there some
provision in the laws of New
Jersey by which it is lawful to
do as he has done?"
He is not a bigamist. The
prohibitory decree in a divorce
suit is only binding within the
state. A prohibition to remarry
is regarded as in the nature of
a penalty, and has no force as a
disability to remarry in another
state (83 Maine Reports, 205).
This has been denied in several
states__Massachusetts, New York
and Kentucky among them.
______
"M.A.L." asks the following
questions: "A man secures a
decree of absolute divorce in
this state. Decree says in part.
"You cannot marry until he be
actually dead." Can she be
legally married in state of New
Jersey or Connecticut?
2. Is there a way to compel the
license clerk to issue a
marriage license. Have made
application but was refused. (3)
Is it necessary to procure a
license in state of Connecticut
(being non resident).
1. On the general principles of
law and the validity of records
of other states, a remarriage in
another state, in consequence of
such a conditional divorce will
not, I judge, be legal.
2. A clerk has a right to
require a reasonable
identification, especially if he
is suspicious.
3. A license is required in
Connecticut to authorize a
marriage.
______
"T.U.P." asks whether a merchant
must stand guard over the old
clothes of a customer while he
is trying to sell the customer
some new ones.
It seems so, decidedly so, so
far as New York is concerned, as
has been decided in the case of
Bunnell vs. Stern. The court
therein held that a merchant
having a store in which he keeps
ready made cloaks for sale, who
provides mirrors for use of
customers in trying on such
cloaks, and clerks to aid in the
fitting on, thereby impliedly
invites customers to remove
their old cloaks while trying on
new ones, and he is bound to
look out for thieves and shop
lifters while the customer's
attention is engaged in looking
at the new one. If such merchant
provides no place where the old
cloak can be left, and does not
hang it on his arm or shoulder
and does not notify the customer
himself to look out for its
intermediate safety, and has no
rules requiring employees to
keep an eye on it when laid on
the counter, and the old cloak
disappears from want of anybody
watching it, he must allow a
rebate of its value on the price
of the now one, or, if no
purchase is made, must hand over
an equivalent in cash.
