Volume 1 — Bedell

<p>Sale — Improper Evidence op Market Value. Where vendees interpose to an action on their promissory note, given to their vendor for a portion of a fixed quantity of merchandise to be delivered, a counterclaim for damages arising from his failure to deliver the full amount thereof, it is reversible error to permit the vendor to prove in his own favor, as evidence of its market value, that he resold the undelivered merchandise to a third party at the contract price.</p>

<p>1. Witness—Improper Oroos-examination Based upon Pacts not in Evidence. Permitting the prosecution in a criminal trial, on cross-examination, and against defendant’s objection, to ask witnesses to his good character what they would say upon that point, if it appeared by a decree of limited divorce, which was not in evidence, but from which the district attorney read in constructing his question, that defendant had been guilty of cruel and inhuman conduct towards his wife and daughter, and had threatened to kill them, is an error, not cured by the rejection of the decree when subsequently offered in evidence, for which a judgment of conviction must be reversed.</p> <p>2. Weight to be Given Good Character. Upon such a trial, it is reversible error for the court to refuse to charge that the jury may, in the exercise of sound judgment, give the defendant the benefit of previous good character, no matter how conclusive the other evidence may appear to be, and that the character of the accused may be such as to create a doubt in the minds of the jury and lead them to believe that the other evidence is false.</p>

This proceeding was brought to compel the deféndants, as and composing the civil service board of the city of Syracuse, to make and cause to be delivered to the common council of that city their certificate that the relator herein had passed an examination for merit and fitness for the position of custodian of the city hall, pursuant to the provisions of the Civil Service Act; that his rating upon the eligible list for that position was the highest of the veterans who had…

The nature of the action and the facts, so far as material are stated in the opinion. The transfers of property, the conversion of assets into money, or into checks of Littauer Brothers, and the transfers of those checks to the favored creditors, are part of the general assignment made with the intent of the assignors to secure to such creditors an excessive preference when the general assignment was made.

The nature of the action and the facts, so far as material, are stated in the opinion. No valid execution was ever issued upon the judgment. (L. 1894, ch. 447; Code Civ. Pro. §§ 123, 1239, 1246 ; F. H. Nat. Bank v. Bussing, 147 N. Y. 665; O. Nat. Bank v. Olcott, 46 N. Y. 12; Harvey v. Brisbin, 143 N. Y. 151; Adsit v. Butler, 87 N. Y. 585 ; Geery v. Geery, 63 N. Y. 252; Estes v. Wilcox, 67 N. Y. 264; Nat.

The facts, so far as material, are stated in the opinion. The functions of the comptroller are judicial in their nature and he cannot be compelled by mandamus to decide in any particular way, or to audit the account to the amount claimed by the relator’s. (People ex rel. v. Leonard, 74 N. Y. 443; People ex rel. v. Common Council, 78 N. Y. 33; Wood on Mandamus, 10; Merrill on Mandamus, § 30; Short on Mandamus, 256; High on Ext. Leg. Rem. § 24; 14 Am. & Eng.

Appeal, by permission, from a judgment of the Appellate. Division of the Supreme Court in the fourth judicial .department, entered November 28, 1899, affirming an interlocutory judgment overruling defendants’ demurrers to the complaint, entered upon a decision of the court on trial at an Equity Term; also a motion by respondents to dismiss the appeal.

The nature of the action and the facts, so far as material, are stated in the opinion. The deed having been given as security only, the transaction constituted a mortgage; and this would be so even if there had been no written agreement on the part of Byrne to reconvey.

Also a motion by respondent to dismiss'said appeal. The facts, so far as material, are stated in the opinion. The motion for a new trial upon the ground of newly-discovered evidence, made after conviction, but before affirmance of judgment, and before the ease or bill of exceptions is made, should be included in the judgment roll. (Code Grim.

The nature of the action and the facts, so far as material, are stated in the opinion. The act of calling “ Jersey City, all out,” at a time when the plaintiff knew that the train was still approaching the terminal station was not an invitation to alight, and would not have justified the plaintiff in leaving the train before it stopped, had it consisted of ordinary cars.

<p>Marine Insurance—Meaning op Term “ Collision.” Collision in modern marine parlance and within the meaning of the clause of a marine insurance policy insuring a vessel against “ any accident caused by collision,” although including its impact with floating and foreign objects, means a collision with such objects by mere chance or accident, and its owner cannot recover from an insurance company, under such provision of the policy, for injuries caused by a deliberate attempt to force it through a floe, or field, of ice, the resisting power .of which had been miscalculated.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The referee erred in going to trial without a copy of the order of reference, when-it was demanded by the defendant before the trial began. (3 Waite’s Pr. 256, 257; 2 Ramsey’s Pr. 355 ; 2 Whitaker’s N. Y. Pr. 413; Baylies’ Trial Pr. 74, 532 ; Moffatt v. Judd, 1 How. Pr. 193; Mooney v. Ryerson, 8 Civ. Pro.

The nature of the action and the facts, so far as material, are stated in the opinion. The provisions of the lease from Sire to Stranahan are such that the law will imply a consent on the part of Sire to the improvements in question. (Burkitt v. Harper, 14 Hun, 581; 79 N. Y. 273; Otis v. Dodd, 90 N. Y. 336; Mosher v. Lewis, 10 Misc. Rep. 373; 14 App.

<p>1. Partnership not Created by Agreement to Form Corporation. An agreement to form a company or corporation does not constitute the parties thereto partners, whatever the relation, in the event of a successful termination; if the scheme proves abortive, the parties are remitted to their former situation.</p> <p>. 2. Action for an Accounting Must be Based upon an Agency or Trust in Regard to Money or Property. Transactions between parties which will warrant one in holding the other accountable for his acts must possess the elements of agency and of a trust reposed, with respect to moneys or other property received, and the defendant in such an action must appear to have been intrusted with property of the plaintiff, and in consequence to have become bound to reveal his dealings with it.</p> <p>3. Complaint in Action fob Accounting; when Demubbable. A complaint in an equitable action for an accounting, alleging, in substance, that plaintiff entered into an agreement with certain defendants to effect a union of their interests in certain street railway companies by the formation of a new corporation, the stock of which was to be divided between them in specified proportions, that defendants abandoned the scheme and the corporation was never organized, and that defendants subsequently combined with others and transferred their properties at great profit to a similar corporation, which they had formed,, and demanding an accounting of such subsequent transactions, and that plaintiff be paid a share of such profits equal to the interest he was to have received in the first-mentioned corporation, is demurrable, as not stating facts sufficient to constitute a cause of action, since, if proved, they w ould not establish between the parties a partnership with its consequent liabilities, and even if deemed to create mutual and confidential relations between parties having a joint interest in the result of an adventure, in the absence of allegations that any profits were made while they were working in combination or that defendants had been intrusted with anv of plaintiff’s moneys or properties, they could not be required to account.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The common council had no authority to order the assessment levied, and, therefore, the assessment, as made by the assessors, creates no cloud on plaintiff’s title, and this action cannot be maintained in equity to vacate or cancel the same.

The nature of the action and the facts, so far as material, are stated in the opinion. The finding by the trial court that the conveyance was made and accepted with intent to hinder, delay and defraud the creditors of John C. Miller' is justified by the evidence. (Coleman v. Burr, 93 N. Y. 17; Bump on Fraud.

The nature of the action and the facts, so far as material, are stated in the opinion. ■». The so-called lease of March, 1864, is a conveyance in fee of the coal in place as land, and not a mere executory contract as found by the referee. (Genet v. D. & H. C. Co., 122 N. Y. 505; 136 N. Y. 593; Caldwell v. Fulton, 31 Penn. St. 475; Miles v. D. & H. C. Co., 140 Penn. St. 623; Lillibridge v. L. C. Co., 143 Penn.

This action was brought to obtain a judgment declaring void a part of the will of Christian F. T. Steinway, deceased, and directing an accounting and repayment of certain income of the estate distributed thereunder. The clause of the will in question provides for a suspension of the absolute ownership of certain shares of stock until a definite date, and not for a period measured by lives, and it is, therefore, void.

The facts, so far as material, are stated in the opinion. The statute, with reference to the conduct of elections, and the canvass of votes at general elections, does not. apply to town meetings, but there is a separate and distinct statute regulating the conduct of town meetings and the method of canvassing votes thereat, which applies to towns in counties where town meetings are not held at the same time and place of holding the general election, and where the votes for…

5,202. The nature of the proceeding and the facts, so far as material, are stated in the opinion. The fact that the licensed premises were closed while repairs were being made and while the liquor tax certificate was in force without any intention of abandoning the traffic in liquor does not make the premises a new place, requiring the consents of adjoining owners.

. Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, made March 27, 1900, reversing a decree of the surrogate of Westchester county finally settling and passing the accounts of the trustees to the date of their removal and remitting the case to the Surrogate’s Court for further proceedings in accordance with the opinion of the Appellate Division.

The proper authorities of the city of Clean, pursuant to the provisions of its charter, in 1893 caused Barry street to be paved. The plaintiff then was and since has been the occupant as tenant for life, under the will of her deceased husband, of a lot abutting upon Barry street. Each of the appellants Gleason and Pancoast is, under the same will, the owner in remainder of one undivided third of the same lot.

<p>Murder—Charge—Consideration of threats made by deceased. . ,</p> <p>In a capital case the court refused to charge the jury “ That they may consider in determining as to whether the defendant had reasonable grounds for believing that he was in imminent danger of death or great personal injury from the deceased, that the deceased, prior to the shooting, had made threats to the defendant that he would kill or injure him,” saying, “ Refused; because the basis for making it is not borne out by the evidence.” Held error, as to hold there was no basis in the evidence for such a request might have been understood as holding that defendant’s testimony was not true.</p> <p>Parker, Ch. J., dissenting.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in thé first judicial department, made February 9, 1900, affirming an order of Special Term adjudging the plaintiff guilty of a civil contempt and imposing a fine upon him of $1,373.48, and committing him until payment, or his sooner lawful discharge, for that he refused to pay to the defendant Elizabeth C. Walker, as administratrix, $1,170.20, with interest from April 14, 1897, pursuant to a…

The nature of the action and the facts, so far as material, are stated in the opinion. Widener did not render himself liable for the note in action by the mere act of purchasing the interest of Petrie in the business and effects of Smith & Petrie.

The action was brought to construe and enforce the will of Gerard B. Scranton, who died in the city of New York in December, 1888. The provisions in controversy are found in the fourth, fifth, sixth and eighth paragraphs thereof, and are as follows: “Fourth.

In the closing days of the year 1887 the plaintiff and Mason A. Stone, then the secretary but now the president of the defendant, entered into negotiations looking to the appointment of the plaintiff as general agent for the defendant to effect insurance in the states of Hew York and Pennsylvania, or parts thereof, and as a result an agreement was reached which was reduced to writing and duly executed on the last day of the year 1887; the agreement reads as follows : “…

<p>x. Murder—Triál.</p> <p>Defendant, upon the trial, admitted writing a memorandum in a book foretelling the death of his wife and himself by his hand, but swore in his own defense that the real agreement was that his wife should be the murderer, and the writing was to save her from the consequences of her crime should her courage be insufficient for self execution after killing him. The court charged the jury that they had his written statement and his sworn testimony, and that they were at variance and asked the jury which they were going to believe. Held, no error, that the charge did not treat the statements in the book and the testimony as narrative of the crime by the one or the other; that a view of the memorandum which regards it as merely evidence of intention was too narrow, and that the charge was put with such clearness and force that there was no opportunity for confusion as to whether the memorandum spoke before or after the event.</p> <p>2. Trial—Cross examination.</p> <p>A judgment of conviction will not be reversed on the ground that the court gave the district attorney too much latitude in his cross-examination, where the questions asked did not elicit answers that were at all injurious to the defendant.</p>

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The conclusion of the referee, that, as the board of assessors failed to deduct from the gross assets of the First National Bank the sum of $93,000, the actual value of its real estate, and did deduct only the sum of $50,000, that the remaining $43,000 should be deducted, is proper and should be sustained.

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to reverse the nonsuit as to appellant Campbell. (L. 1892, ch. 688, § 48; L. 1890, ch. 564, §48; L. 1882, ch. 409, § 187; 1 R. S. 591, § 9; 2 R. S. 137, § 1; 1 R. S. 766, §§ 20, 21; Spellman v. Looschen, 31 App. Div. 94; Matter of M. & H. P. Co., 12 App.

Appeal irom a judgment of the Appellate Division of the Supreme Court in the fourth j'udicial department, entered December 24, 1897, affirming a j'udgment in favor of plaintiff entered upon a verdict. This action was brought to recover damages for an alleged wrongful discharge of the plaintiff, who had been employed by the. defendant for the period of one year to act as superin tendent of its bicycle factory at Lake View, about twenty-miles from Buffalo.

Butler, entered upon the report of a referee. The nature of the action and the facts, so far as material? are stated in the opinion. The lease, being in contravention of the positive prohibition of the Constitution of the state of ¡New York, was, in all respects, absolutely void. (Const. 1846, art. 1, § 14; Const. 1894, art. 1, § 13; Clark v. Barnes, 76 N. Y. 301; Odell v. Durant, 62 N. Y. 524; Parish v. Rogers, 20 App.

The nature of the action and the facts, so far as material, are .stated in the opinion. The special statute was repealed by the general statute passed in 1886. (People v. Jaehne, 103 N. Y. 182; 2 R. S. [9th ed.] 1680.) The special act has no place upon the statute books, and the legislature must have intended to remove it, and to place the matter of taxing lands, divided by town lines, upon a just, harmonious and equitable basis.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in refusing to allow defendant Uhlmann to testify as to his belief in respect of deposits being taken on Monday, and as to his belief up to Tuesday night, August eighth, with regard to the ability of the bank to pay liabilities.

<p>Appeal—Whén Refusal to Nonsuit is not Reviewable by Court of Appeals. Where the Appellate Division has reversed a judgment based upon a verdict held to be against the weight of evidence and grants a new trial, and on a subsequent trial the evidence is substantially the same as on the former trial, the refusal of the trial court to nonsuit presents no error reviewable by the Court of Appeals, where the evidence is sufficient to support a verdict either way.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The motion to dismiss the complaint should have been granted, and the verdict rendered was against the weight of evidence. (Tyler v. Ames, 6 Lans. 280; Glenny v. Lacy, 1 N. Y. Supp. 513; Brand v. Goodwin, 15 Daly, 456; Spring v. Ansonia Clock Co., 24 Hun, 175; Johnson v. Brindseil, 15 Daly, 492; 16 Daly, 232; Glyn v. Miner, 6 Misc.

The nature of the controversy and the facts, so far as material, are stated in the opinion. The fund in controversy is impressed with the trust settled by the donors. There has been neither a breach of trust by th@ defendant nor a failure of this trust.

This action was brought to foreclose a mortgage for $150,000, dated March 1, delivered June 1 and recorded June 12, 1895, given by the Horicon Improvement Company to the plaintiff as trustee for the bondholders, upon certain' premises near Lake George known as the Lake House and Prospect Mountain properties.

This action was to recover twenty-five thousand dollars, the penalty of an official bond given by James E. Ostrander to the plaintiff for the faithful performance of his duties as its treasurer, and upon which the other defendants are sureties. Since the commencement of the action Ostrander died and the defendant Virginia E. Ostrander, as executrix, has been substituted in his place.

favor of plaintiff entered upon a verdict directed by the court. Plaintiff leased to defendant for the term of three years certain premises in the city of Rew York, with the latter’s covenant to use the same only for a liquor saloon. The action was brought to recover for certain installments of rent under the lease. The defense was that the demised premises were within 200 feet of a grammar school and, therefore, that the lease was in violation of the Liquor Tax Law of 1896.

<p>Murder—Evidence necessary to convict.</p> <p>Two witnesses testified to having passed the man who was afterwards killed, that they heard a thud, saw one man lying on the sidewalk and another stooping over him. that the latter ran up the street. The man was closely followed by a bystander who kept him in sight until he was caught by an officer, to whom defendant said, “ What is the matter, I didn’t rob anybody.” He said he was in a fight with four or five. When told the the man was dead, he said, “ My God, if I had known that you never would have got me,” etc. Held, that while the evidence as to the cause of injury was somewhat meagre, it was sufficient to carry the case to the jury and justified the verdict of murder.</p>

<p>1. Evidence — Inadmissible Declarations of Street Car Con* ductor to Third Party. Admissions or declarations made to a third party, after an accident, by the conductor of a street car, indicating that he was willing to assist a passenger injured by the accident in an action to recover damages of the corporation, do not bind the latter and are inadmissible against it where they do not tend to contradict or impeach the conductor in anything to which he has testified as a witness for the defendant.</p> <p>3. Witness — Party Concluded as to New Matter Elicited on Cross-examination. Where upon cross-examination the plaintiff elicits from opposing witnesses matter not brought out on their direct examina* tion, he makes the witnesses his own as to such new matter and cannot contradict them in regard to it, since the effect would be to permit him to impeach his own witnesses.</p> <p>3. Burden of Proof — Erroneous Instruction as to its Shifting under the Rule Res Ipsa Loquitur. Where a plaintiff seeks damages for personal in j uries caused by the alleged negligence of a corporation, and is assisted in making out a prima facie case by the fact that the circumstances of the accident raise a presumption of negligence, it is erroneous for the trial court to charge the jury that under the whole proof the burden is upon the corporation to show the exercise of due care in the construction of its road and in the management of its cars and horses to prevent accidents, and that the question is whether the corporation has met that burden, since the burden of proof is at all times upon the plaintiff, $tnd, if the proof of the corporation rebutted the presumption of its negligence or left the fact of negligence in doubt, .the plaintiff, who alleged ¡negligence, must suffer and not the defendant.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The entire legal and beneficial title to the land in question was originally vested in the plaintiff.

This action was brought to recover damages for personal injuries alleged to have been received through the negligence of defendant. The facts, so far as material, are stated in the opinion. The risk was not obvious. (Hawley v. N. C. Ry. Co., 82 N. Y. 370; Myers v. Erie R. R. Co., 44 App. Div. 11.) The plaintiff did not assume the risk.

This action was originally brought by the plaintiff, as assignee for the benefit of creditors of one Reinhardt, against Chambers & Lemon, to recover the purchase price of goods sold and delivered by the plaintiff’s assignor to that firm. Reinhardt had purchased the goods from this defendant, who made claim to them, or their proceeds, upon the ground of fraud in the transaction of their sale.

Plaintiff brought this action for personal injuries, received by him while employed by the defendants and which he alleges to have been caused by the negligence of the latter. The defendants, as contractors, were engaged in lowering the tracks of the New York and New Haven Railroad Company; a work which had been going on for some two years.

On the 14th of February, 1896, Lafayette Lee, then about seventy years of age and a resident- of Martinsburgh, Lewis county, H. Y., died, leaving a last will and testament disposing of both real and personal property. He left him surviving a widow and four children, the defendants being his daughters by the wife who survived him, and the plaintiff and her sister, Helen A. Foot, being his daughters by a former marriage.

<p>1. Will — Right op Trustee Thereunder to Assign Bond and Mortgage —When Mortgagor is Protected in Payment to Assignee. The assignment or transfer of a bond and mortgage belonging to a trust fund is within the authority conferred upon a trustee by a will requiring executors to invest a certain sum upon bond and mortgage, and providing that the investment, should remain intact and invested until testator’s oldest child should arrive at full age, when a moiety of the principal, interest and increase thereon should be paid her, and the remaining moiety should remain intact and he paid to his youngest child when he attained his majority, and that when the investment is made the executors should transfer the securities to a trustee named who should control and manage them, receive, collect and pay over interest and principal thereon, and in all things carry out the directions and provisions of the will as to said investment, since the provision that the investment should remain intact during the minority of his children does not require the fund to be invested in a mortgage or mortgages which should run during that time and Which could, under no circumstances, be discharged and the fund reinvested, but requires only that the fund should remain intact in that it could not be properly diverted from the purpose to which it was dedicated by the testator; and where, without any knowledge of the existence of the trust, except that the bond and mortgage was given to a trustee, the mortgagor, in good faith, pays the interest and principal to the assignee who had them in his possession under an assignment which contained a general authority to collect, the payment discharges his liability and he is entitled to have them discharged of record. •</p> <p>2. Relation oe Attorney and Client between Parties to Assignment will not Avoid Payment to Assignee. The fact that the assignee of such bond and mortgage is the attorney for the assignor will not avoid the payment thereof to the assignee, since the mere existence of the relation of attorney and client between the parties to the assignment is not sufficient to charge the mortgagor with notice that the assignee had no title thereto, and the assignment having been properly executed and the assignee authorized to receive the principal and interest the mortgagor is justified in making such payment.</p>

This action was brought to compel the defendant to account for harrows sold pursuant to two contracts, called licenses, dated April 1, 1891, to recover damages for sales alleged to Jiave been made in violation of such licenses, and to obtain a judgment restraining the defendant from making further sales in contravention thereof. The facts, so far as .material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. The order of reversal is appealable to this court. (Van Tassel v. Wood, 76 N. Y. 614; Otten v. M. Ry. Co. 150 N. Y. 395.)

<p>1. Evidence — When Experts may State only Facts — When they may State Facts and Give Opinions. Expert testimony is admissible in two classes of cases: First, where the conclusions to be drawn by the jury depend upon the existence of facts, not of common knowledge, but which are known to men whose study and experience enable them to speak with authority, in which cases experts can only give the facts while the jury must draw the conclusion; second, where the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend upon professional or scientific knowledge or skill; and here experts may give the facts and their conclusions therefrom in the form of an opinion, which the jury may adopt or reject; if the knowledge of the experts consists in descriptive facts which can intelligently be communicated to others not familiar with the subject, the case belongs to the first class; but if the subject be one where such knowledge or skill can be communicated only in the form of reasons, arguments or opinions, it belongs to the second class.</p> <p>2. Negligence — Improper Admission in Evidence of Opinion as to Sufficiency of Eyebolt. When, in an employee’s action against his employers to recover damages for injuries caused by his having been thrown from their hoisting derrick when it fell because an eyebolt, helping to support that and another derrick, broke, it is a question of fact whether the eyebolt was sufficient to support both derricks, it is erroneous to permit experts to express an opinion that “it was not sufficient,” and their testimony should be limited to descriptive facts from which the jury can form a conclusion whether the eyebolt was sufficient to sustain both derricks or not.</p>

This was a proceeding instituted October 22, 1899, under subdivision 2, section 28 of the Liquor Tax Law (L. 1896, ch. 112, as amd. by L. 1897, ch. 312), to revoke and cancel a liquor tax certificate issued to the defendant May 18, 1899, after he had on October 2, 1899, surrendered the certificate and demanded the rebate for the unexpired term.

During the year 1898 the city of Albany constructed a sewer and assessed a portion of the expense upon premises owned by Margaret A. Hunter, who instituted this proceeding to set the assessment aside upon the ground that one of the streets, so called, through which the sewer passed, was not a public highway but her private property.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 4,, 1900, affirming an order of Special Term denying a motion of defendant for the trial of the issues herein by a jury, and appointing a referee to take and report the proofs in relation to the allegations contained in the petition. The questions certified were as follows: Eirst.