Volume 10 — E.H. Smith

The nature of the action and the facts, so far as material, are stated in the opinion. The deed to plaintiff, so far as it included the railroad strip, was void under the Champerty Act.

This action was brought to recover damages alleged to have been sustained through the negligence of defendant in conducting a purchase of real estate for the plaintiff. The facts, so far as material, are stated in the opinion.

Appeal, by certification, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 19, 1897, affirming an order of Special Term denying a motion for an injunction. The nature of the action, the facts, so far as material, and the questions certified are stated in the opinion.

Appeals from orders of the Appellate Division of the Supreme Court in the third judicial department, entered December 6, 1897, quashing writs of certiorari in each of the above-entitled proceedings. The facts, so far as material, are stated in the opinion. The order is appeal-able to the Court of Appeals.

The nature of the action and the facts, so far as material, are stated in the opinion. In respect to the carriage of passengers, a common carrier is hound.to exercise all the care and skill which human care and foresight can suggest to secure their safety. (Maverick v. Eighth Ave. R. R. Co., 36 N. Y. 378; Coddington v. Brooklyn C. T. R. R. Co., 102 N. Y. 66; Hastings v. Central C. T. R. R. Co., 7 App.

The nature of the action and the facts, so far as material, are stated in the opinion. Under the standard policy of the state of New York, the insurer has thirty days from the final ascertainment of the loss or sum of money payable under the policy within which to make its election to rebuild, and such final ascertainment is an award by appraisers when an appraisal has been required. (Clover v. Greenwich Ins.

<p>1. Appeal — Exception to Findings op Fact. When an appeal from a judgment of the General Term affirming a judgment in an action tried by a referee or by the court without a jury is upon the judgment roll alone, there being no case containing the evidence, a notice of exception to findings of fact presents no question for review by the Court of Appeals.</p> <p>2. Findings Regarded as Conclusions op Law — General Exception. Even if findings of fact referred to in a notice of exception maybe regarded as conclusions of law, they are not presented for review by the Court of Appeals where the exception is merely general, as, “the plaintiff herein excepts to the findings of fact found at the request of the defendants and numbered” so and so.</p> <p>3. Notice of Exception to Conclusions of Law. A general notice-of exception to conclusions of law, in an action tried by a referee or by the court without a jury, as, “ the plaintiff excepts to the conclusions of law found,” is insufficient to raise any question for review by the Court of Appeals. To be effective, the notice must contain a specific “ exception to a ruling.” (Code Civ. Pro. § 994.)</p> <p>4. Refused Requests to Find. A notice of exception to the refusal to find requested conclusions of law is ineffective in the Court of Appeals,, when no such requests are to be found in the record before the court.</p>

This was an action to recover damages for a personal injury alleged to have been caused by the negligence of defendants. The facts, so far as material, are stated in the opinion. Plaintiff and the captain were fellow-servants, and the plaintiff having been injured, as lie claims, by the act of the captain (his fellow-servant), cannot recover. (Bagley v. Consolidated Gas Co., 5 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in denying the defendant’s motion for a nonsuit, and in denying the defendant’s motion for the direction of a verdict. It must be established, not only that the defendant was guilty of an act or- omission producing the injury, but that the injury was something which might naturally and reasonably be expected to follow from the act.

This action was brought to recover damages alleged to have been sustained by plaintiff by reason of the carelessness of a contractor employed by the defendant to blast out a cellar upon his premises, which were adjacent to those of the plaintiff. The facts are stated in the dissenting opinion. There was no proof of want cf care on the part of the defendant.

This action was brought against1 Georgianna B. S. Terry and Sarah L. Scofield to recover a deficiency .upon a sale of lands under mortgage foreclosure, half of which mortgage, it was alleged, had been assumed by the defendants as grantors, in a deed of an undivided one-lialf of the mortgaged premises. The appellant alone defended, Mrs. Scofield making default. The facts, so far as material, are stated in the opinion.

. ' While the action as originally commenced included other purposes, it was finally treated simply as an action at law by the vendee of real property to recover the payments of purchase money made to the vendor.

Appeal, by certification, from an order of the Appellate-Division of the Supreme Court in the first judicial department, entered December 31, 1897, as amended by an order entered January 14, 1898, reversing an order of the Special Term continuing an injunction during the pendency of this action.

The nature of the action and the facts, so far as material, are stated in the opinion. The language of the will, indicates clearly that the testator intended to devise the whole of his estate, including the remainder in fee, and if it was in any way uncertain as to that intention, the law favors a construction that will prevent partial intestacy to one that will permit it.

This was an action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. The facts, so far as material, are stated in the opinion. The defendant was free from negligence contributing to the injury. (Miles v. King, 18 App. Div. 41; Black v. Third Am. R. R. Co., 2 App. Div. 387; Jonas v. L. I. R. R. Co., 21 Misc.

The nature of the action and the facts, so far as material,, are stated in the opinion. Respondent not having shown any pecuniary damage to her alleged water rights in Honeoye creek her complaint should have been dismissed under all the facts and circumstances of this case. (Starr v. Child, 5 Den. 599; Halsey v. McCormick, 13 N. Y. 296; People ex rel. v. Jones, 112 N. Y. 597; Gouverneur v. N. I. Co., 134 N. Y. 355; Morison v. N. Y. El.

This action was brought to recover damages for personal injuries alleged to have been sustained through the negligence of defendant. The facts, so far as material, are stated in the opinion. The court erred in sustaining the objection to the evidence of Dr. M. Cavana. (Edington v. Ætna L. Ins.

It appears by the record that the determination of the commissioners was confirmed, without costs, and that three of the justices concurred, while two dissented. The facts, so far as material, are stated in the opinions. The commissioners had no power to remove the relator without a trial and for a cause shown, as he was a veteran of the late war.

The judgment of the appellate division, in addition to reversing for errors of law the judgment of conviction and the order denying a new trial, stated that having inspected the return and the facts therein, and having exercised its discretion, it had refused a new trial upon the facts, and also refused a new trial upon the ground that the verdict was against the weight of the evidence.

<p>1. Criminal Law—Principal.</p> <p>In the criminal law, a person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids or abets in its commission, and whether present or absent, or, directly or indirectly, counsels, commands, induces or procures another to commit the crime, is a principal.</p> <p>3. Evidence—Circumstantial.</p> <p>When a criminal charge is sought to be sustained wholly by circumstantial evidence, the hypothesis of guilty or delinquency should flow naturally from the facts and circumstances proved and be consistent with them all.</p> <p>3. Same.</p> <p>The facts and circumstances.must all be consistent with and point to the guilt of the accused not only, but they must be inconsistent with Ms innocence.</p> <p>4. Same—Motive.</p> <p>In case of proof by circumstantial evidence, the motive often becomes not only material but controlling; in such case, the facts from which it may be inferred must be proved.</p> <p>6. Same.</p> <p>The motive, attributed to the accused in any case, must have some legal or logical relation to the criminal act, according to known rules and principles of human conduct. If it has not such relation, or if it points in one direction as well as in the other, it cannot be considered a legitimate part of the proof.</p> <p>6. Same—Simhab acts.</p> <p>If evidence tends to prove a motive for the commission of the oifense charged, it is none the less admissible because it tends also to prove that the defendant may have been guilty of some other crime or moral de linquency.</p> <p>7. Same.</p> <p>Past transactions, involving suspicion of other possible wrongdoing, or acts from which inferences of moral turpitude may be drawn, should be excluded, unless they have some bearing on the main fact to be proved.</p> <p>8. Same—Cbabacteb.</p> <p>Moral character of defendant is not involved in the inquiry, where he does not make it a subject for debate himself, or testify in his own behalf.</p> <p>9. Evidence—Ibbelevant.</p> <p>A circumstance which has no bearing on the case one way or the other, and will present the defendant to the jury in a very unfavorable light with respect to a transaction foreign to the issue, should be ex eluded.</p> <p>10. Same.</p> <p>Letter, witten by bishop of diocese to defendant prior to commission of alleged crime, which has not tendency to throw light on the real question of fact in volved in the case, and can only prejudice and mislead the jury, is inadmissible.</p> <p>11. Defendant as witness—Pbesumftion.</p> <p>The fact that the accused does not testify in his own behalf cannot be permitted to create any presumption against him. The force of this proposition should not be weakened or destroyed with the jury by qualifying words.</p> <p>12. Evidence—Oboss-examination.</p> <p>Question on cross-examination, which relates to the very transaction that the witness had described on his direct examination, and has a plain tendency to explain or modify it, is proper, and ruling excluding it is error.</p>

The defendant, Frank N. Sheldon, was on the 9th day of October, 1896, indicted by the grand jury of Cayuga county for the crime of murder in the first degree, charged with the killing of his wife, Eva M. Sheldon; on the 12th day of October, 1896, he was arraigned on said indictment and pleaded not guilty. On the 25th day of January, 1897, at a trial term of the supreme court held in and for the said county, the indictment was moved for trial.

<p>Appeal from a judgment of the supreme court in Queens county, upon a verdict convicting the defendant of the crime of murder in the first degree.</p>

<p>Appeal from a judgment of the appellate division of the supreme court in the fourth judicial department, affirming a judgment of the Monroe county court of sessions, entered upon a verdict convicting the defendant of the crime of willfully and maliciously destroying personal property, and also affirming an order denying a motion for a new trial, and an order overruling defendant’s demurrer to the indictment.</p>

Appeal, by certification, from an order and interlocutory judgment of the Appellate Division of the Supreme Court in the second judicial department, entered respectively January 21 and January 26,1898, reversing an order and interlocutory judgment of the Special Term sustaining a demurrer to the complaint.

This action was upon a policy of insurance by which the defendant insured James J. Quinn against loss and damage by fire to certain personal property contained in his dwelling house in the village of Charlotte, N. Y. The policy was a standard fire insurance policy of the state of New York, and contained the following clause: “No suit or action on this policy, for the recovery of any claim, shall he maintainable in any court of law or equity * ® - unless commenced within…

The subject of this action was a farm in the town of Coeymans containing about two hundred and forty acres of land, to which the plaintiffs claim title by virtue of a deed from Peter W. Ten Eyck to John If. Carroll, a deed from John If. Carroll to Elizabeth Ten Eyck, and a deed from Elizabeth Ten Eyck to the plaintiffs.

trial. The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in instructing the jury that, notwithstanding the repair made in 1888 was properly and effectively made, the duty of keeping the grating in repair after that time rested upon the defendant.

This action was brought to set aside an appraisal of land for the purpose of fixing the rental upon the renewal of a lease, which, after the usual covenants on the part of the landlord and tenant, provided as follows: “And the said parties for themselves and their legal representatives mutually covenant and agree that, provided the said party of the .second part (tenant) and her legal representatives shall observe, keep and perform all the covenants and agreements herein…

Cross-appeals, by certification, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 11, 1898, modifying an interlocutory judgment entered upon a decision of the Special Term. The nature of the action, the facts, so far as material, and the questions certified are stated in the opinion.

<p>Appeal—Court of appeals—Section 528.</p> <p>Court of appeals will exercise the power conferred upon it by section 528 of Criminal Code, in granting a new trial on the ground that justice requires it where the people have failed to prove the fact of the killing of the deceased by the defendant beyond a reasonable doubt, and it appears that another person has, since the conviction of defendant, been convicted of murder in the second degrte for the killing of the deceased.</p>

Gross-appeals from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 2, 1897, affirming an order-made by the surrogate of the county of New York adjudging the amount of taxes to be paid by the property of the estate of J ay Gould transferred by will, under the act in relation to taxable transfers of property (L. 1892, ch. 399). The facts, so far as material, are stated in the opinion.

The action was for the partition of real property situated on West Thirty-second street in the1 city of Mew York. The1 property was originally owned by Michael Banzer and J ohn Maier as tenants in common,, each owning an undivided one-half. Maier subsequently conveyed his interest to- Susanna Banzer, the wife of his cotenant. Michael Banzer died in the1 city of Mew York September1 28, 1882, seized of an undivided one-half interest in the property mentioned.

Appeal, by certification, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 28, 1897, affirming an order of Special Term continuing an injunction. 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 plaintiffs cannot maintain this action, and the court erred in refusing, at the close of the evidence, to dismiss the action on defendant’s motion. (Code Civ.

Appeal, by certification, from an interlocutory judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 23, 1897, affirming an interlocutory judgment entered upon a decision of the Special Term overruling a demurrer to the complaint. The material allegations of the complaint, the ground of demurrer and the questions certified for review are set forth in the opinion.

<p>1. Appeal—Parties Bound by Findings of Fact. On appeal from a judgment on a trial by the court, parties who have not appealed are bound by the findings of fact made by the trial court; while the appellants are bound by all to which they did not except and, after an affirmance by the General Term, by all even of those excepted to that find any reasonable support in the evidence.</p> <p>2. Corporation — Consideration for Promise by Holder of Receiver’s Certificates to Perform Reorganization Agreement. A promise by a holder of receiver’s certificates to perform a corporation reorganization agreement not signed by him, founded on the consideration that his certificates, as to which serious questions existed that were pending in the courts, should be validated by an amendment of the decree in foreclosure of the corporation mortgage, is upheld and rendered binding, by the prompt making of the amendment by the consent of the parties to the agreement through the reorganization committee, and the discontinuance, through the same agency, of th£ litigation to test the validity of the certificates.</p> <p>3. Action fob Belief from Violation of Beorganization Agreement — Theories of Defense. The theories advanced in defense of an action by bondholders for relief from the violation of a corporation reorganization agreement —- that there was a rescission of the agreement, that there was a lawful modification of the agreement, that there was a ratification by the plaintiffs of the modification, and that there was such laches on their part as to defeat their cause of action — examined and found not sustained by either the law or the facts.</p> <p>4. Bescission. Effective rescission requires a lawful right to rescind, due notice of an intention to rescind and the restoration of benefits received by the party attempting to rescind, so that the other party may be placed in statu quo. Even if the most complete right of rescission exists it cannot be exercised without a return or an offer to return such benefits.</p> <p>5. Modification of Beorganization Agreement. Where the powers . of a corporation reorganization committee are defined and limited by the reorganization agreement, they cannot of themselves change or dispense with an express stipulation of the agreement.</p> <p>6. Batification of Modification of Beorganization Agreement. A ratification, by a bondholder, of a modification of a reorganization agreemént by the reorganization committee is not established, where there is no evidence that the bondholder intended to forego any advantage or to surrender any right, and nothing was done by him inconsistent with the existence of the rights conferred by the original agreement, or with his intention to rely thereon, and there was no consideration, intent, misleading conduct, change of position or mutual understanding from which a waiver or estoppel can properly be inferred.</p> <p>7. Laches. Whether the equitable doctrine of laches, as distinguished from the Statute of Limitations, now exists in this state, is open to serious doubt.</p> <p>8. Laches of Parties to Beorganization Agreement. Where a corporation reorganization agreement is signed by many different1 parties, it is not necessary that each should sue in order to preserve his rights. Suit by one of a class, in behalf of all, relieves from the imputation of laches.</p> <p>9. Belief of Bondholders. Where it is apparent that bondholders who have signed a reorganization agreement are entitled to some relief from a violation thereof by the defendants in an action instituted on their behalf, a dismissal of the complaint upon the merits is improper, even though it appears that the relief will probably prove of slight value, and that specific performance of the rights of the bondholders cannot be had in justice to third parties.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The instrument is fraudulent and void because it contains a trust for the use of the debtor’s wife, to whom he was not indebted.

' Appeal from an order and a judgment of the late General Term of the Supreme Court in the third judicial department, entered February 27 and March 8, 1895, respectively, reversing a final judgment entered upon the decision and order of the court at Special Term, sustaining plaintiffs’ demurrer to the defendants’ answer. •This action was brought to recover the use and occupation of a certain stairway in common with the defendants, and to restrain them from interfering with…

This action was commenced on the 12th of August, 1893, to recover the amount of a promissory note, dated January 12th, 1893, whereby the defendant Frank R. Keyes promised to pay to the order of the defendant Cora W. Keyes the sum of $1,442.82 six months after date. Said note was indorsed by the payee and delivered to the plaintiffs before maturity.

The defendant was incorporated by chapter 189 of the Laws of 1879. One of the purposes of its incorporation, as stated in the act, was to aid, assist- and support members or their families in case of want, sickness or death.

<p>.1. Second offense—Indictment.</p> <p>The indictment of the person accused of being a second offender must bring the case within the statute, by setting forth the facts depended upon for the imposition of the severer punishment prescribed by the Penal Code</p> <p>:2. Same.</p> <p>In the absence of some statutory provision permitting it, the defendant cannot plead in part, and thus restrict the issue and the proof to be offered under the indictment.</p> <p>3. Same—Proof.</p> <p>Until legislation has changed the rule, it is essential that the prior conviction be proved by the people as a part of the case against the prisoner.</p> <p>-4. Same—Ingredient.</p> <p>Where an increased punishment is prescribed by the statute upon conviction for a second offense, the prior conviction enters as an ingredient into the criminality of the prisoner, not that the fact of the prior conviction tends, in any wise, to prove the commission of the second offense, but that it aggravates the guilt of the prisoner and, as a hardened or unreformed criminal, subjects him to an increased punishment for the repeated crime.</p> <p>5. Same—Section 688 of Penal Code.</p> <p>Section 688 of the Penal Code does not conflict with, and destroy, the. presumption of innocence, to which he is entitled under the law, and deprive him of his liberty without that due process of law which is ■ guarantied by the Constitution to every citizen.</p> <p>6. Same—Constitutional law.</p> <p>In enacting that, upon a conviction for a second offense, the punishment shall be one of greater severity, the legislature has acted in accordance with the dictates of a wise policy and has invaded no constitutional right.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. A jury has once found upon the evidence contained in this record that the American Dairy Salt Company, Limited, received the plaintiffs money on deposit, and not as an ordinary loan, a finding which the evidence fully justifies. (Payne v. Gardiner, 29 N. Y. 146; Boughton v. Flint, 74 N. Y. 476; Smiley v. Fry, 100 N. Y. 262; Matter of Waldron, 28 Hun, 481; West v. First Nat.

<p>1. Evidence—Subornation oe perjury.</p> <p>It is not error to permit the people to show that during the period when defendant is alleged to have been searching for witnesses, he and his agent made the effort to induce others, than those who subsequently took the stand, to swear falsely.</p> <p>8. Same—Conspiracy.</p> <p>Where there is sufficient evidence to justify the conclusion that differ, ent persons charged with a crime were acting with a common purpose and design, although it does not appear there has been a previous combination or confederacy to commit the particular offense, the acts and . declarations of each, from the commencement of the consummation of the offense, are evidence against the others.</p> <p>3. Same.</p> <p>A conspiracy may be proved by circumstantial evidence, and parties performing disconnected overt acts, all contributing to the same result, may, by the circumstances and their general connection or otherwise, be satisfactorily shown to be confederators in the commission of the offense.</p> <p>4. Same—Another crime.</p> <p>Evidence of other transactions, otherwise material or relevant, is not inadmissible merely because it tends to prove another crime.</p> <p>5. Witnesses—Impeachment.</p> <p>Evidence, as a basis for impeachment, must he material or relate to a fact brought out by adverse counsel.</p>

<p>Appeal from an order and judgment of the appellate division, reversing the judgment of conviction.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The right of the incumbent of a public office to hold and enjoy his office is a right or privilege that is protected by section 1 of article 1 of the Constitution of this state. (Code Civ.

The facts, so far as material, are stated in the opinion. The bonds did not represent the capital stock of the relator, but its surplus. (Williams v. W. U. Tel.

referee, and, as so modified, affirmed it. The nature of the action and the facts, so far as material, are stated in the opinion. The division line between the parties, as found by the referee, cannot be supported by the evidence in this case on any possible theory. (Kingsland v. Chittenden, 6 Lans. 15; 1 Am. & Eng.

The nature of the action and the facts, so far as material, are stated in the opinion. After the compulsory-taking of the land the city stood in no different relation to those whose title or lien it had divested than any other trustee to its cestui que trust. (L. 1888, ch. 583, tit. 8, § 5.) When the realty was sold for arrears the purchaser was not thereby vested with any legal .title to the premises.

in the third judicial department, entered February 21, 1895, affirming a judgment in favor of defendant entered upon a nonsuit granted at Circuit. The nature of the action and the facts, so far as material, are stated in the opinion. The granting of the motion for a nonsuit by the trial court was error.

<p>1. Fraud — Sale of Corporate Stock — Conduct of Trial. Considerable liberality in the exercise of the discretion of the court in the conduct of the trial, in the method of examination and in the scope of the inquiry is proper in an action for fraud in the sale of stock of a corporation promoted by the defendant for taking over his private business.</p> <p>2. Question for Jury. Where, in such an action, the evidence might permit the jury to consider that the plaintiff was experienced in such matters and availed himself of opportunities offered to independently examine into the affairs of the corporation, still the question of fraud is properly one for the jury, if they might also consider, with reason, that there were facts in the formation and business operation of the corporation which were falsely stated or designedly suppressed by the defendant to his advantage in the negotiation for the sale of the stock.</p> <p>3. Damage. The question of whether damage resulted to the vendee from a purchase of corporate stock alleged to have been induced by fraud, depends upon what was the actual value of the stock when he negotiated for its purchase, and not upon what he accomplished thereafter under Ms management of the corporation.</p> <p>4. Evidence — Letter Written by Plaintiff to Defendant. On the trial of an action for fraud in the sale of corporate stock, a letter written by the plaintiff to the defendant after the sale may be admissible on behalf of the plaintiff as showing the attitude of the parties, even if it does not appear to be in response to anything from the defendant, when it forms part of and was necessitated by a correspondence between the parties and contains nothing necessarily amounting' to a charge of misconduct or to the making of evidence.</p> <p>5. Representations by Promoter of Corporation to Subscribers. When, on the trial of an action for fraud in the sale of stock of a corporation promoted by the defendant to take over Ms private business, the defendant goes into the subject of the organization, and testifies upon cross-examination that he informed subscribers for stock at what figure a certain item of assets was taken- over, the stockholders may properly be asked, in impeachment of the defendant's testimony, what information they received from him on the subject at the time of their subscriptions.</p> <p>6. Representations as to Value of Corporate Property. When the question on trial involves the existence of an intention in the defendant to defraud the plaintiff in the sale of stock in a corporation promoted by the defendant to take over his private business, it is permissible to inquire into the truth of the representations of the defendant, which concerned the value of the properties turned over to the corporation and which entered into the basis of a valuation of the shares of its stock.</p>

<p>Basement — Reservation of Qualified Right of Wat. A deed of ;a portion of the grantor’s farm reserved “the right of way over the east lot to and from the wood lot at all times when said lot is not sown with grain, and at all times when there is sleighing.” Held, that this subjected the granted land to merely a qualified and limited right of way in favor of the grantor’s remaining land, consistent with the grantee’s right to cultivate the soil within the limits of the way as theretofore used, and did not justify a judgment which gave the easement the effect of a gen•eral right to use the way at all times, even when sown to grain, and to' •enter and repair the way with any desired material.</p>

W. Paige, attorney for the sequestration receiver, of the sum of 04,770.22, and overruled the exceptions of the plaintiff to such payment; and also from an order made May 4, 1898, reversing an order which denied the plaintiff’s motion for an order'directing Paige to pay to the plaintiff 04,770.22, and granted the plaintiff’s motion for repayment to it by Mr. Paige of the sum of 03,564.04.

The nature of the action and the facts, so far as material, are stated in the opinion. Certain findings should be' stricken from the case under the terms of the stipulation made. (L. 1888, ch. 214, tit.

Appeal, by permission, from a judgment of the late General Term of the Supreme Court in the fifth judicial department, entered December 29, 1894, affirming a judgment of the Monroe County Court in favor of plaintiffs entered upon a decision of the court on trial without a jury.