Volume 10 — Bedell

The facts, so far as material, are stated in the opinion. The new rule of the state board of charities deprives the juvenile asylum of the right to receive children by surrender as a public charge, a power granted to the juvenile asylum.by the legislature, and to that extent repeals the asylum’s charter.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant Culver or his lands are not liable for respondent’s liens. (De Klyn v. Gould, 165 N. Y. 282; Vosseller v. Slater, 25 App.

The facts, so far as material, are stated in the opinion. The surrogate erred in refusing and neglecting to tax the transfers of remainders made by the 17th clause of the will of Cornelius Vanderbilt. (Matter of Sherman, 153 N. Y. 4 ; Knowlton v. Moore, 178 U. S. 55 ; Matter of Knoedler, 140 N. Y. 380; Murdock v. Ward, 178 U. S. 146; Eyre v. Jacob, 14 Gratt. 430; Strode v. Commonwealth, 52 Penn.

<p>Mortgage — Action to Foreclose, After Foreclosure of Another Mortgage on Other Property Given in Part as Collateral Security for Debt Secured by First Mortgage, not Prohibited by Code Civ. Pro. §§ 1628, 1630. An action to foreclose two mortgages upon the same property, made by the same mortgagor and held by the same assignee, is not prohibited by sections 1628 and 1630 of the Code of Civil Procedure, notwithstanding that another mortgage given by the same mortgagor upon another property to the same mortgagee to secure the payment of another debt and also as a further and additional security for the debts represented by the first two mortgages, had been foreclosed by such mortgagee and the proceeds of the sale, after paying the expenses of foreclosing the last mortgage, and the amount for which it was given, had been applied upon the payment of the debts secured by the first two mortgages but leaving a deficiency for Avhich no judgment was ever entered or docketed,' or execution issued to collect the amount thereof, and that after such sale the mortgagee assigned the first two mortgages without in terms transferring any right to the deficiency, which, however, passed by operation of law to an assignee who thereafter, and without obtaining leave of the court, began the action to foreclose the first two mortgages: since the deficiency judgment, if one had been entered and docketed, would not have been a “ final judgment for the plaintiff "" 6 in an action to recover any part of the mortgage debt” secured by the first two mortgages and no action has been brought to recover any part of such mortgage-debt, within the meaning of the statute, for the reason that the suit to foreclose the mortgagor’s equity of redemption in the property covered by the last mortgage was not such an action.</p>

This action was brought to recover damages on account of personal injuries alleged to have been sustained by the plaintiff through.the negligence of the defendant. She rented the ground floor of a tenement house from him, and was authorized by his agent to use a window, which had an iron gate swinging on hinges, in order to reach the hack yard.

The nature of the action and the facts, so far as material, are stated in the opinion. It was not negligence for the-defendant to mail for payment the checks received from the plaintiff directly to the drawee hank.

The facts, so far as material, are stated in the opinion. Certiorari is the appropriate remedy and brings up for review upon this appeal the entire proceedings had before, and taken by, the Public Improvement Commission of the city of Cohoes in reference to the paving and recurbing of Saratoga street, including the alleged illegal provisions contained in the specifications for such work. (Code Civ.

The action involves the construction of the provisions of the will of John Lowry, who died in 1895.

Evidence—Restriction as to Use of Premises for a-Saloon When Removed by Quitclaim Deed—Acts and Conversations of Parties Inadmissible to Contradict Deed.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department, entered June 10, 1902, which affirmed a judgment of the Kings County Court rendered upon a verdict convicting the defendant of the crime of perjury.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered May 26, 1902, which affirmed a final order of Special Term dismissing a writ of habeas corpus and remanding the relator to custody.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>1. Murder—Trial—Former Jeopardy-—New Trial.</p> <p>Where the court, on the trial of defendant for murder, was satisfied that one of the jurors was sick and unable to perform his duty, it was authorized to order him discharged and to then or subsequently impanel another jury to try the indictment, and a plea of former acquittal or conviction could not be properly interposed.</p> <p>2. Same—Evidence.</p> <p>Proof of finding upon the premises of the accused the frame of a revolver, with which it was claimed a murder was committed, and which was partially covered with black grease and emitted a smell of burnt powder from the barrel, together with testimony of the finding of the center pin and of several cartridges containing bullets similar to the one extracted from the/head of deceased, is competent, although the cylinder was not found and no direct proof that there was a cylinder in the frame while it was in the possession of the accused.</p> <p>3. Same—Lay Witness.</p> <p>The court, upon the cross-examination of a witness for the prosecution who has testified to acts and conversations of the accused subsequent to the homicide, pproperly excluded evidence as to whether the conduct of the accused seemed to the witness to be natural and genuine when the opinion called for is not restricted to any particular act or acts testified to by him, and the witness is not shown to possess any superior knowledge on which to base an opinion.</p> <p>4. Same.</p> <p>The testimony of a nurse as to the appearance, silence and demeanor of a wife when the husband, accused of shooting her, came into the room where she was, as well as a statement concerning her subsequent physical condition and temperature, are inadmissible as a basis from which to draw conjectures as to the wife’s belief in the guilt of the husband, whose innocence she had declared, where, at the time, the accused neither made any direct admission nor performed any act which could be regarded as an admission.</p> <p>6. Same—Silence op Accused.</p> <p>A husband accused of the shooting of his wife, where there is no proof that he observed these things is not required to interrogate her as to her change of countenance, as to the reason why she withdrew her hand, why she did not speak to him, or look at him, or why she turned her head, nor is his silence at the time such an acquiescence in her conduct as to render testimony of her demeanor admissible, where she had persistently declared him to be innocent, was at tBfe time in a semi-conscious and partially paralyzed condition, and he had been cautioned by her attendants to maintain silence and not disturb her.</p> <p>6. Same—Knowledge of Impulses of Deceased.</p> <p>It was error for the court to permit a nurse, who attended a wife fatally shot, to state her knowledge of the impulses of the deceased in withdrawing her hand from her accused husband, when such knowledge was based upon the looks of deceased and what she subsequently said, with no proof as to what that statement was.</p> <p>7. Appeal—Reversible Error.</p> <p>■ . The erroneous admission in a trial for homicide of evidence as to the silence of the accused while in the presence of the deceased before her death, and as to the demeanor of the latter, constitutes reversible error where the testimony was specially called to the attention of the jury in the charge of the court, and they were told that it might be considered by them in determining the defendant’s guilt or innocence.</p> <p>8. Same—Admissions.</p> <p>Statements made by a husband, accused of killing his wife, to & witness, that although the latter had told him that his wife could not speak before her death, yet the witness was reported in a newspaper as having said that the deceased told her that the husband was guilty, do not constitute an admission by the accused of any fact material to the issue and are inadmissible..</p> <p>9. Same.</p> <p>Where a witness was improperly permitted to testify as an expert to many material matters when he was obviously incompetent, the. error is not cured by striking out ¿11' except such portions as bear on specified subjects, where it is difficult if not impossible for the jury to determine what was stricken out and what remained; nor is the error cured by an offer of the court to strike out the entire evidence of the witness and permit him to be recalled when the proper foundation is laid.</p> <p>10. Same—Dying Declarations.</p> <p>The fact that decedent was in actual danger of death may be established by her declarations, the testimony of the attending physicians and the circumstances showing her condition, and that it was realized by her.</p> <p>11. Same.</p> <p>It is error for the court to admit proof of the declarations of the decedent relating to occurrences forming no part of the res gestae and which took place hours before the tragedy.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The constitution of the clearing house, to which neither the plaintiff nor the defendant was a party, is not binding upon the defendant.

The nature of the action and the facts, so far as material, are stated in the opinion. The direction of a verdict for the defendant, and the affirmation of that direction by the appellate court was error in law. Plaintiff was clearly entitled under the undisputed evidence and the law to the direction of a verdict in its favor.

The nature of the action and the facts, so far as material, are stated in the opinion. When a member of a firm knowrs of the unauthorized use of the firm name in the indorsement of paper, it becomes liis duty to stop it, and upon failure to do so he becomes estopped as to persons dealing with the paper in good faith and becomes liable for any loss they may incur. (Story’s Eq. Juris. § 1546; Walsh v. H. F. Ins.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in tlie second judicial department, entered March 11, 1902, which reversed an order of Special Term referring the issues in the action to a referee to hear and determine the same. The nature of the action, the question certified and the facts, so far as material, are stated in the opinions.

The nature of the action and the facts, so far as material, are stated in the opinion. i The appellants are entitled to recover from the respondent the amount of their deposit made in pursuance of the respondent’s call for bids, in the event that the respondent, at the time and place fixed by the offer and acceptance, undertook to deliver only alleged bonds which were invalid or of doubtful validity and did not tender valid and effectual bonds.

<p>Evidence — Parol Evidence Inadmissible to Show that Note, Absolutely Delivered at Date Thereof, Was Not to Be Paid upon the Happening of a Subsequent Contingency. A promissory-note for a fixed sum, payable at a certain time and place, and actually delivered to the payee at the date thereof, although accompanied by a contract in writing showing that the note was given for a scholarship in a business college, the course of study to be entered upon by the maker of the note at or about the time the note became due, such scholarship to he transferable after payment therefor had been made and acknowledged, cannot be contradicted by parol evidence that the note was not to he paid if the maker should decide not to take instructions at the school and could not sell her scholarship, in which event the note was to be canceled and the maker released from the payment thereof, since the delivery of the note was not a conditional delivery, not to become complete and effective until the happening of some condition precedent, hut was an absolute delivery, which cannot he defeated by the happening of any subsequent contingency.</p>

The facts, so far as material, are stated in the opinion. Upon his retirement in 1882 the relator’s husband, George A. Waddy, ceased to be a member of the police department.

The facts, so far as material, are stated in the opinion. The obvious purpose of the action taken by the board of fire commissioners of Long Island City was to foist upon the Greater Hew York a number of additional firemen and extended additions to the plant of the fire department in violation of the plan of consolidation.

The facts, so far as material, are stated in the opinion. The appellant is still in the public service and should be transferred and reinstated as assistant sergeant-at-arms to the board of aldermen of the city of New York. ITe cannot by reason of the abolition of the council be suspended of removed from the public service, nor can the amended charter of the city of New York be construed to permit his suspension or removal.

the first judicial department, entered March 23, 1900, sustaining defendant’s exceptions ordered to be heard in the first instance by the Appellate Division and granting a motion for a new trial. The nature of the action and the facts, so far as material, are stated in the opinion.

■ The nature of the action and the facts, so far as material, are stated in the opinion, The instrument of March 18, 1895, and the payment of the money in accordance therewith to the plaintiff constituted the plaintiff trustee. (Morse v. Morse, 85 N. Y. 53 ; Gilman v. McArdle, 99 N. Y. 451; Day v. Roth, 18 N. Y. 448 ; Matter of Carpenter, 131 N. Y. 86 ; Woodward v. James, 115 N. Y. 346 ; Gillet v. Bank of America, 160 N. Y. 549; Simpson v. J. C. C. Co., 47 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May o, 1902, which modified and affirmed as modified an order of Special Term entered upon the report of a referee on a final accounting. The questions certified and the facts, so far as material, are stated in the opinion. The interest is incident to the debt and is entitled to the same preference.

The nature of the action and the facts, so far as. material, are stated in the opinion. The complaint shows that both notes and mortgages were good and valid in their inception. (Webb on Usury, §§ 306, 307; Sweeney v. M. L. Assn., N. Y. L. J. Dec. 1, 1900.) Usury is not sufficiently pleaded. (Manning v. Tyler, 21 N. Y. 567; Gannon v. Forgotston, 62 N. Y. S. R. 835 ; Banks v. Van Antwerp, 5 Abb.

On the 9th of October, 1893, the plaintiff leased to the defendant certain premises in the city of New York for the term commencing October 1st, 1894, and ending April 30th, 1904, at the annual rent reserved of $6,400, payable in equal monthly payments in advance.

at Special Term and dismissing the complaint. The nature of the action and the facts, so far as material, are stated in the opinions. .The dismissal of the plaintiff’s complaint by the Appellate Division was erroneous.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff failed to sustain the burden of proof resting upon her to show that the defendant was the active procuring cause of her abandonment.

' Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 3, 1901, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion.

The action was brought by the assignee of a policy of insurance, issued by the defendant upon the life of Patrick J. McGuinness, who died on April 3d, 1895. The defense interposed by the answer, and which furnished the issue for trial, was that the action had not been commenced within six months after the decease of McGuinness, the insured.

The facts, so far as material, are stated in the opinion. Upon any theory, the petitioner is entitled to share in the interest, and his compensation cannot be less than ten per cent of the total amount. (Carpenter v. City of New York, 44 App. Div. 230; Devlin v. Mayor, etc., 131 N. Y. 125.) The petitioner is entitled to compensation on the basis of an award of $70,213.26. (Devlin v. Mayor, etc., 131 N. Y. 123; Matter of Board of Street Opening, 21 App.

Apx’bal from a judgment of the Appellate Division of the Supreme Court iix the fourth judicial department, entered May 8, 1901, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The nature of the actioxx and the facts, so far as material, are stated in the opinion.

<p>1. Statute of Limitations—Outlawed Claim not Revived by Letter of Debtor Offering to Buy it for a Small Sum. The liability of an indorser of a note, outlawed by lapse of time, is not revived by a letter from him to the holder of the note stating, in substance, that he is unable to pay the note and offering to buy it, if the holder will sell'it for some small sum that he can, in justice to other interests, afford to pay; since such letter contains no promise to pay the note nor is it an acknowledgment of an existing debt.</p> <p>2. Same—Operation of, Suspended by Non-resideñce of Debtor, Notwithstanding Casual Visits to the State. Where a person removed from the State of New York to another state after a cause of action had accrued against him and has since resided in the latter state, such absence suspends the running of the Statute of Limitations against him, notwithstanding the fact that he has made a number of brief visits to the city, of New York or to his old residence within this state; the amendment of 1888, changing section 401 of the Code of Civil Procedure so that it reads, “ departs from and resides without the State and remains continuously absent therefrom,” instead of “ or remains continuously absent therefrom,” did not alter the rule that non-residence is absence, and that casual visits to the state do not destroy the continuity of the absence.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to reverse the judgment in favor of Abraham Van Siclen on the ground that he was not in possession of the property, and did not have the beneficial enjoyment thereof. (Kernochan v. N. Y. E. R. R. Co., 128 N. Y. 565.)

This action was brought to recover for personal injuries alleged to have been caused by the negligence of the defendants.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff made out a cause of action, and, upon the evidence, was entitled to judgment. (Matter of E. R. F. L. Assn., 131 N. Y. 370; Plank Road Co. v. Payne, 17 Barb. 580; Barreda v. Silsbee, 21 How. [U. S.] 146 ; Williams v. Parker, 136 Mass. 204; N. Y. & N. H. Ry.

Appeals from two orders of the Appellate Division of the Supreme Court in the first judicial department, entered April 12, 1901, which affirmed two judgments entered upon a decision of the court on trial at Special Term sustaining demurrers of defendant to the replies of the plaintiff and dismissing the complaint. The nature of the actions and the facts, so far as material, are stated in the opinion. The complaint states facts sufficient to constitute a cause of action.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 25, 1902, which affirmed an interlocutory judgment of Special Term sustaining a demurrer to the complaint. The nature of the action, the facts, so far as material, and the question certified are stated in the opinion.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 17, 1901, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court.</p>