The Lawyer's Corner: 1898 #4

 
 

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.

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"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.

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"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.

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"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.

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"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.

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"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.

 

Website: The History Box.com
Article Name: The Lawyer's Corner: 1898 #4
Researcher/Transcriber Miriam Medina

Source:

The Brooklyn Daily Eagle February 6, 1898
Time & Date Stamp: