Volume 100 — New York Miscellaneous Reports

Appeal by defendant from a judgment rendered in the Municipal Court of the city of New York, borough of Manhattan, ninth district, in favor of the plaintiffs for the sum of $504.85, in a trial before the court without a jury, and from an order permitting the plaintiffs to serve a substituted amended complaint.

<p>Evidence — when verdict and judgment in criminal action cannot be given in evidence in civil action — insurance (burglary)—damages — negligence — appeal.</p> <p>The verdict and judgment in a criminal action cannot be given in evidence in a civil action to establish the facts on which it was rendered.</p> <p>An application for a policy of burglary insurance prepared by defendant, containing a knowingly false statement that plaintiff had never theretofore suffered a loss from burglary, theft, or larceny, was rescinded and plaintiff’s claim of loss from burglary subsequent to the date of the policy and within the period covered thereby was rejected on the ground of the said false statement. In an action to recover damages alleged to have been suffered by plaintiff because of the negligence of defendant, as plaintiff’s agent, in procuring the policy' of insurance, the reception in evidence over the objection and exception of defendant of an exemplified copy of the record of a competent court of jurisdiction in the state of New Jersey setting forth the conviction of certain persons, of which defendant herein was not one, for burglary committed on a certain date during the period covered by said policy of insurance at plaintiff’s residence in the state of New Jersey, is error calling for the reversal of a judgment in favor of plaintiff, there being no competent or sufficient proof of plaintiff's loss of property by burglary during the term of the policy and, therefore, no competent proof that plaintiff had suffered damage through the alleged negligence of the defendant.</p> <p>Cohalan, J., dissents.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, rendered in favor of plaintiff, after a trial before the court without a jury.

<p>Corporations — foreign — actions — pleading — General Corporation Law, § 15.</p> <p>Jurisdiction— when court has — of actions — foreign corporations — contracts — waiver—Code Civ. Pro. § 1780(4).</p> <p>The provision of section 15 of the General Corporation Law, which prohibits a foreign stock corporation from bringing an action upon a contract made in this state without first being authorized to do business therein, must be pleaded to be effective.</p> <p>In an action by a foreign corporation against a like corporation, upon a contract made in this state, the defendant may waive its right to object to the jurisdiction of the court on the ground that plaintiff has never procured authority to do business in this state and defendant’s disclaimer of any intention to move for a dismissal of the ease for lack of jurisdiction is a waiver of any such right of objection.</p> <p>Where the defendant corporation was and for many years had been doing business in this state and had been licensed so to do, the court, under section 1780(4) of the Code of Civil Procedure, has jurisdiction of the action though plaintiff had never procured authority to do business in this state.</p>

<p>Injunctions — when court may grant—evidence — Liquor Tax Law, § 28.</p> <p>Under the provision of section 28 of the Liquor Tax Law that the court upon the hearing of an application to enjoin the trafficking in liquors contrary to the statute shall take the proofs of the parties and, if deemed necessary or proper, may "take testimony in relation to the allegations of the petition,” the court, if satisfied that it can fairly decide the issues upon the proofs of the parties other than testimony, is authorized to summarily grant the injunction.</p>

<p>Marriage— annulment of — husband and wife — duress — legitimacy of child born out of lawful wedlock — Domestic Relations Law, § 24.</p> <p>Where, after the birth of a child of which plaintiff was the father, the mother coerced him by threats of bodily violence, to be inflicted by her brother, to go through the form of a marriage ceremony and he complied upon the express understanding, embodied in a writing, that they should never live together as husband and wife nor have any claim upon each other because of, or arising from, the marriage ceremony, and it is established that they had not cohabited or lived together as husband and wife, plaintiff is entitled to a decree of annulment on the ground that his consent to the marriage was procured under duress.</p> <p>The child, however, by virtue of section 24 of the Domestic Relations Law, became legitimatized by the marriage, and its status in that regard was not disturbed because of the fact that subsequently said marriage was annulled.</p>

<p>Negotiable instruments — bills,, notes and checks — what constitutes payment of check — banks — when plaintiff entitled to judgment.</p> <p>A check drawn by a trust company to the order of plaintiff was forwarded to its correspondent bank and on the day that it was sent to the New York clearing house with other exchanges the credit balance due to the correspondent bank, which included the amount of said check, was paid by the defendant bank upon which the check was drawn in accordance with the rules of the clearing house. In an action on the check, held, that charging the account of the trust company with the defendant bank constituted a payment of the cheek and that the mere physical act of defendant’s bookkeeper after notice of the suspension of the trust company, which occurred on the same day that the cheek was sent to the clearing house, of striking out said charge and transferring it to the credit column on the defendant bank ledger did not deprive plaintiff of the right that had accrued by reason of the charge that had been made against the debit account.</p> <p>When the defendant bank debited the cheek against the account of the trust company it recognized the validity of the cheek and plaintiff is entitled to judgment for the amount thereof, with interest.</p>

<p>Constitutional law — provisions of order of board of health of city of Albany in relation to selling milk — actions — when injunction pendente lite denied.</p> <p>Order No. 31 of the board of health of the city of Albany, which provides that no milk dealer shall sell loose or dipped milk in the city of Albany after April 1, 1917, is constitutional, and in an action brought to determine the validity of said order an injunction pendente lite will be denied.</p>

<p>Motion for a new trial and to set aside a verdict found by a jury in favor of plaintiff.</p>

<p>Motions for peremptory writs of mandamus.</p>

<p>Surrogate’s Court — what issues in, triable by jury — attorneys — services — substitution — constitutional law.</p> <p>Only those issues which by constitutional provision were formerly triable by jury can be submitted to juries in the Surrogate’s Court.</p> <p>After a contested claim against an estate had been allowed and was affirmed on appeal, the petition of the claimant for the removal of her attorney and the substitution of another in his stead was granted but without prejudice to any claim or lien the removed attorney might have for services rendered up to the time of the granting of the order of substitution. Held, that in a proceeding to have his claim and lien determined and enforced his former client was not entitled to a jury trial in the Surrogate’s Court.</p>

<p>Transfer tax — trusts — trustees — trust agreement between partners — wills — executors and administrators — contracts — gifts.</p> <p>Where, under a trust . agreement between two partners by which one sold his entire interest in the business to the other, it was agreed that a stipulated amount should be held in trust by the latter and be a first lien upon the assets of the business during the continuance of the trust, the trust fund, upon the death of the trustee, constitutes no part of his estate.</p> <p>The deceased trustee by his will recommended that his executors set apart certain shares of stock, standing in his name, of a corporation that succeeded to and was carrying on the business at the time of his death, to an amount sufficient to produce a stipulated income and to discharge the principal at the termination of the life estate, with a further recommendation that said executors should enter into an agreement with the beneficiaries of the trust to accept such provision in full settlement and discharge of all obligations under the trust agreement. The beneficiaries having approved of and consented to this method of adjustment and compromise of the trust obligations, held, that as their rights had no concern with any property of which the deceased trustee died possessed there was no taxable transfer.</p> <p>The executors having been constituted substituted trustees of the trust, their dealings with the beneficiary in the adjustment of the trust and the manner of the investment of its funds were in their capacity as substituted trustees and not as executors of the will.</p>

<p>Judicial settlement of account of executor.</p>

<p>Executors and administrators — when executor -may not be removed — partnership — corporation — Code Civ. Pro. § 2569.</p> <p>An executor may not be removed from bis office merely because he presents a claim against the estate of the decedent or claims that property ostensibly constituting a part thereof in reality belongs to him.</p> <p>The petition of the legatee of one-sixth of an estate for the revocation of letters testamentary and the removal of the executor alleged that he had stated that the partnership existing between him and decedent at the latter’s death was insolvent, and that the estate was indebted to him as the surviving member of the partnership; that among the creditors of the firm were certain corporations that were owned or controlled by the executor. The petition also alleged that the executor and surviving member of the firm claimed title to certain shares of stock; that a deed of conveyance of certain real estate made by decedent years before his death to said executor was without consideration; that said deed was not delivered until after the marriage of the decedent to the petitioner and that the executor had failed to include such real estate among the assets of the estate. The petition further alleged that the purported sale and assignment of certain shares of stock by decedent, five years before his death, to said executor was not bona fide but was merely intended to transfer the legal title to said stock during the time decedent held a certain municipal position and that such stock should be included among the assets of the estate. The application was opposed by the legatees entitled to two-thirds of the estate.</p> <p>Held, that, assuming the truth of the allegations of the petition, they did not justify the removal of the executor under section 2569 of the Code of Civil Procedure which enumerates the delinquencies or acts of misconduct for which an executor may be removed by the Surrogate’s Court, and that the application should be denied.</p>

<p>Proceeding upon the probate of a will.</p>

<p>Transfer tax— claim for exemption — when transfer by trustees of assets in kind to executors of deceased residuary legatee not subject to transfer tax.</p> <p>Shortly after the death in 1894, of a non-resident of this state, part of whose estate consisted of certain shares of stock of the National City Bank of New York, an agreement was entered into between the testamentary trustees and the residuary legatees by which the trustees were authorized to continue the investments of the estate, or to make such other investments as they might deem advisable, to sell the securities belonging to the estate at such times as seemed most advantageous and to divide the proceeds among the legatees. At the death of one of the residuary legatees, a non-resident, in 1902,' part of the principal of the estate of his testator, which was still in the hands of the trustees, consisted of shares of stock of said bank. In accordance with their decision to distribute in kind certain assets of the estate the trustees prepared to transfer to the executors of the estate of the deceased residuary legatee certain shares of the stock of said bank as his share of the assets but the bank refused to make the transfer except upon the consent of the state comptroller or the order of the court determining that such transfer was not subject to a tax. On granting an application to exempt from taxation the transfer of said stock, held, that the interest of the deceased legatee was simply a right to an accounting and not to any specific part of the assets of the estate; it was an interest in the proceeds of the sale of such stock when such proceeds were distributed among the residuary legatees, and was not subject to a transfer tax.</p>

<p>Application to vacate a decree of the court settling the account of executors and trustees.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, rendered in favor of the plaintiff and from an order denying a motion to vacate the judgment and also from an order directing the taxation of costs.

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the plaintiff after a trial before the court without a jury.</p>

<p>Appeal— when, deemed abandoned — case — judgments — City Court of city of New York — rules 33 and 35 of General Rules of Practice — Code Civ. Pro. § 997.</p> <p>The abrogation of rule 35 of the General Rules of Practice, which provided that an appeal should be deemed to be abandoned unless the party making a ease should procure it to be signed and filed within ten days after it had been settled, did not change the rule that a case must still be “ settled ” by the trial justice.</p> <p>Where an appellant on appeal from a judgment of the City Court of the city of New York has failed to make and serve a case within the required time the proper practice is to move in the court below, under rule 33 of the General Rules of Practice, for an order declaring that the appellant has waived his right to make a ease and terminating the proceeding by declaring it abandoned, and, upon obtaining an order to that effect, to move in the appellate court for an order dismissing the appeal.</p> <p>Under section 997 of the Code of Civil Procedure it is the duty of the appellant in such ease to procure the ease on appeal to be settled and signed by the trial justice.</p>

<p>Appeal — Municipal Court of city of New York — to Appellate Term — notice of—Municipal Court Code, § 129(3).</p> <p>Where the notice of appeal from a judgment of the Municipal Court of the city of New York was filed eight days after the expiration of the time limit, the appeal will be dismissed.</p> <p>Where prior to the taking of the appeal a motion made under section 129(3) of the Municipal Court Code to vacate. and set aside the judgment and for a new trial has been denied, an appeal to the Appellate Term of the Supreme Court from the order entered on the denial of such motion brings up for review only that part of the order which refused to grant a new trial.</p>

<p>Easements — of light, air and access — city of New York — injunctions — evidence —damages — elevated railroads.</p> <p>On the ground that it is an unlawful interference with his street easements of light, air and access, the owner of a corner building on Third avenue in the city of New York, along which is operated an elevated railway, may be granted an injunction to restrain the continuance by the railway company of the construction of a signal tower and storage platform with a supporting column in the sidewalk at the street intersection, though such structure is being built wholly within the lines of the intersecting streets, so that if the boundary lines of plaintiff’s property were projected to the east across Third avenue or to the south across the intersecting street they wordd not in either case touch any portion of the structure of which complaint is made.</p>

<p>Motion to set aside the verdict of a jury.</p>

<p>Insurance (marine) — contents of certificate of — carriers — pleading — contracts — evidence.</p> <p>Where the complaint in an action to annul or reform a certificate of insurance issued on the Lloyds plan by underwriters, of which plaintiff was one, alleges in the same paragraph that the intention and the understanding of the underwriters and the insured were that the subject matter of the insurance was “ coal, including freight,” and not “ coal ” as erroneously written in the certificate of insurance, and also that the insurers “ were not informed as to the exact value of said coal sought to be insured, but proceeded upon the implied representation and assurance that the insured was the owner of the coal and that the amount of freight sought to be insured had been or would be actually paid prior to the sailing of the vessel and would be at the risk of the owner of said cargo during the said voyage,” and it is expressly alleged that the subject matter of the risk arose “ through clerical errors and mutual mistakes ” and upon the proofs the court must find that when the certificate was issued the underwriters were justified in assuming and believing, in view of the failure to disclose the actual facts on the part or in behalf of the insured, that the latter had paid or guaranteed the payment of the freight, plaintiff is entitled to have the certificate canceled and set aside.</p> <p>Expert testimony of underwriters of marine insurance as hearing upon the materiality of the omission to disclose to the insurers that the insured had no risk in the freight was admissible.</p>

Motion by plaintiff to change the title by omitting therefrom the words “ individually and as executrix and executor of the Estate of Theresa M. Amend.”

<p>Application for the cancellation of an assessment levied in a street opening proceeding.</p>

<p>Action to recover upon a written covenant contained in an assignment of a bond and mortgage.</p>

<p>Insurance (accident) — provisions of policy of — renewals — trial — Insurance Law, § 107.</p> <p>Section 107 of the Insurance Law, which provides that on and after January 1,1914, no policy of accident insurance “ shall be issued or delivered ” unless certain conditions are complied with and that no such policy shall be issued or delivered “ unless the exceptions of the policy be printed with the same prominence as the benefits to which they apply,” refers to such a policy which expired by its terms in 1903 and every renewal of such policy since the enactment of section 107 of the Insurance Law is subject to the provisions thereof.</p> <p>Where, in an action on said policy, the issue was whether the death of the insured was due to accidental means or whether he died from disease and the court is satisfied that the matter was not adequately put before the jury and that the question of death from suicide, which came into the ease, did not properly belong therein, and the court is impressed with the belief that because of omissions or errors in its charge the interests of justice require that the questions of fact should be submitted to another jury under a proper charge, plaintiff’s motion to set aside a verdict in favor of defendant and for a new trial will be granted.</p>

<p>Decision on a demurrer to a counterclaim.</p>

<p>Motion for a bill of particulars.</p>

<p>Injunctions — pendente lite — facts sufficient to sustain — contracts — pleading.</p> <p>An injunction pendente lite may be granted to enforce a covenant not to enter the employment of another, in a contract for personal services, where the services are unique, special or extraordinary, involve trade secrets or confidential information and the contract is not in restraint of trade, unreasonable, unconscionable or inequitable, and there is no adequate remedy at law.</p>

<p>Guardian ad litem — of infants — removal of— guardian cannot be required to give security for costs — Code Civ. Pro. § 469.</p> <p>Where the guardian ad litem, for an infant plaintiff is incompetent and irresponsible, he may be removed under section 469 of the Code of Civil Procedure, or he may be permitted to continue upon giving security to protect the infant, but he cannot be required to give security for costs.</p>

<p>Motion to allow the city of Rochester to intervene as a party defendant.</p>

<p>Stay — of sale — action to foreclose land contract — bankruptcy — order reviewable at Special Term — rule 67 of General Rules of Practice.</p> <p>A stay of a sale in an action to foreclose a land contract will not be granted at the instance of creditors or the receiver of the owner of the equity of redemption, who since the advertisement of the sale has been adjudicated a bankrupt, solely to give the receiver or the creditors an extension of time in which to endeavor to raise funds to obviate the necessity of the sale, where the plaintiff, the owner of the legal title, claims that an extension will result in his own insolvency.</p> <p>An order granting a stay of the sale in such an action made under rule 67 of the General Rules of Practice is one made out of court and is reviewable at Special Term and may be vacated or modified as the facts may appear on such motion.</p>

<p>Costs — allowance of, in action to foreclose mortgage — fees — referee — statutes — Code Civ. Pro. § 3297.</p> <p>In an action to foreclose a mortgage on real property no costs and disbursements can be allowed beyond those authorized by statute.</p> <p>On a sale in foreclosure of real property the referee’s fees under section 3297 of the Code of Civil Procedure cannot exceed fifty dollars, although there have been two sales of the property one of which has been set aside, and no disbursements for posting notices of sale can be allowed beyond the two dollars provided by statute.</p>

<p>Nuisance — maintenance of — railroads — actions — damages — city of New York—'Statutes—injunctions.</p> <p>The right of one to use his own property in any way he chooses is qualified by the duty to so use it as not to injure his neighbor, and the mere fact that the use is a lawful one is no defense to the maintenance of a nuisance, nor does the fact that the use creating the injury is a proper one furnish a legal excuse unless it is expressly authorized by statute.</p> <p>The rule which grants immunity to a railroad corporation from liability for injuries caused by the conduct of its road does not apply to the maintenance of roundhouses, turn-tables, power-houses, etc., at particular places; as to such structures and their use, if injurious to adjoining owners, a railroad corporation possesses no greater rights and is subject to the same liability as a private corporation and may not locate such structures so as to injure the property, of others except by express or implied legislative sanction which must be imperative and not merely permissive. Plaintiff, fourteen years after he became the owner of certain land, separated from defendant’s adjoining railroad property by a road of fifty or seventy feet wide, built a small house upon his property about seventy-five feet from said road, and seven years before that time defendant’s predecessor built its roundhouse containing stalls for seventeen engines, but subsequently a fire occurred and there are now but twelve stalls. Defendant also maintains at the roundhouse four stationary engines and boilers and four smoke stacks which are level with the road below plaintiff’s house. Prior to the fire defendant also maintained coal chutes in connection with the roundhouse but since that time the engines have been, coaled with a derrick directly from cars in front of plaintiff’s property. In an action to abate an alleged nuisance and to enjoin the maintenance of the roundhouse and for damages, held, that a mere statutory (Laws of 1831, chap. 263; Laws of 1849, chap. 75) grant of power to erect and maintain the structures complained of did not authorize their construction and maintenance at such place or in such manner as to injure adjoining property.</p> <p>That neither a statute,eliminating steam engines in the city of New York, nor the orders of the Public Service Commission establishing a certain local service, required the maintenance of said structures at their present location. That the legislation upon which defendant relies constitutes no protection against liability and that if it is impossible to remove the roundhouse and other structures complained of to a place where they will not injure plaintiff’s property the right to so injure must be acquired.</p> <p>That plaintiff is entitled to recover as past damages the diminution in rental value arising from the maintenance of the nuisance for six years last past.</p> <p>That plaintiff is also entitled to an injunction restraining the further operation of the roundhouse, stationary engines, etc., in such manner as to result in injury to his property unless defendant pay the plaintiff damages, in a fixed amount, for the permanent injury which his property will sustain by a continuance of the nuisance.</p>

<p>Appeal from a judgment of the Police Court of the city of Albany convicting defendant of a violation of section 986 of the Penal Law.</p>

<p>Proceedings upon judicial settlement of the account of executors and trustees.</p>

<p>Wills — burden of proof as to revocation—probate—evidence.</p> <p>In most cases where a will is offered for probate the burden of proof of revocation rests upon the party asserting it.</p> <p>Where the revocation of a will is sought to be established from the simple fact that the testator cut, tore or obliterated the text of the will either in whole or in part, animus revocandi must be established aliter.</p> <p>In every instance of an implied revocation of a will by destruction of any kind, quo animo the act is done must be established aliunde; the mere physical act of destruction is too equivocal to effect a revocation per se, as such destruction may have been unintentional or it may have been by a stranger.</p> <p>After testator’s death a paper offered for probate as his last will, from which, after execution, a disposing clause had been cut out by some one unknown, was found at his residence in a sealed envelope bearing his private seal with an indorsement thereon in his handwriting to the effect that it was his last will and testament. The missing context was established by the evidence as- was also the fact that during the life of the testator, from time to time, others had access to the will, but there was not an item of evidence to show that the excision of the missing clause was made by testator or that he knew of it. A formal rejection or renunciation of the legacies and devises contained in the missing clause, duly executed and delivered, by the only person affected thereby, was received in evidence, without objection, and her testimony as to the sub- “ stance of the missing clause was confirmed by the testimony of the draftsman of the will. The adult family of testator consented to the probate of the paper with the complemented text of the missing portion. Held, that the will, including the missing clause as re-established by the proofs, will be admitted to probate, an exact copy of the text of the will to be annexed to the decree.</p>

<p>Proceeding upon the probate of a will.</p>

<p>Wills — devises — intention of testatrix—expenses of unproductive real estate charged to principal.</p> <p>Testatrix, who left an estate one-half of which represented the proceeds of the sale of real estate which was unproductive from the date of decedent’s death, directed payment of the income of the residuary estate to her husband in monthly instalments during his life, but no part of the principal of the estate was either devised or bequeathed to him. Held, that as the intention of the testatrix could not be carried out if the income from the balance of the estate was applied to the payment of the charges on the principal, the interest on mortgages, taxes and other expenses incurred in connection with the unproductive real estate will be charged to principal and not to income.</p>

<p>Decedents’ estates — claims against — executors and administrators — rejection of claims — evidence — wills — annuities — trusts — Code Civ. Pro. § 2677.</p> <p>After the death of decedent, who had bequeathed to his executors a substantial sum in trust to purchase an annuity upon the life of a person named, the annuitant presented to one of the executors two documents, a bill of $5,000 for services rendered, and a paper referred to as a letter of decedent purporting to explain said bill and expressing the wish that his executors would pay it in cash without causing the annuitant any annoyance or expense. One of the executors objected to the claim after it had been allowed by his co-executor. Upon the accounting, objections to the payment of the claim were filed on the ground, (1), that the claim was not verified as required by law, and, (2) that it had been fraudulently or negligently allowed by one of the executors. Upon consideration of the evidence and in sustaining the objections to the allowance to the claim, held:</p> <p>That although the executors had the right to require the presentation of the claim as required by section 2677 of the Code of Civil Procedure, yet as neither of them raised any objection on the ground that the claim was unverified, but both considered it and acted upon it without requiring the affidavit of the claimant, any defect in the form of presentation was waived and could not be urged by the contestant at the hearing.</p> <p>That executors are agents to settle an estate and where there are two or more of them they are regarded in law as one person representing the testator, and the acts of one involving ministerial duties only are the acts of all; that the payment or allowance of a claim is an act of a ministerial nature and hence the allowance of the claim by one executor binds the estate; that such allowance establishes its accuracy prima facie without further proof and could only be defeated by proof that it was fraudulent or negligent; and that upon that issue the burden of proof was upon the contestants.</p> <p>That the claims against the estates of decedents must be carefully scrutinized and must be established by clear and convincing evidence; that this salutary rule of law would be nullified and rendered of no effect in this estate if the allowance of one executor under the circumstances stated were permitted to stand; that the court was limited to the question whether or not the claim was allowed fraudulently or negligently and that the allowance of the claim under conditions stated, while perhaps due to an honest belief that the executor was in fact carrying out the wishes of his dead friend and with no fraudulent intent, nevertheless establishes the liability of the estate for a large amount of money without an examination and investigation which prudence and a due regard for the rights of the persons interested in the estate would seem to have required;</p> <p>That it was not the duty of the claimant to prove the services rendered, and she had a right to rely upon the allowance by one co-executor until it was rendered of no effect by some mandate of the court; and that the claimant upon the-entry of the decree in this matter should stand in the same position as though her claim had then been rejected by the executors.</p>

<p>Transfer tax—-fixing of—-how determined — taxes — judgments — appeal —- trusts.</p> <p>On appeal from an order fixing the transfer tax upon the transfer of certain property of decedent, it appeared that the transfer was by trust deed executed by decedent in 1905 upon trust to apply the income to the creator during life and upon death to divide the property among the children named. The appraiser refused to deduct the amount of a certain judgment rendered against the creator and taxes and assessments which had accrued subsequently to the date of the trust instrument, in fixing the taxable value of the property. In affirming the order appealed from, it was .</p> <p>Held, that the tax in question is not a tax upon property but upon the transfer of the property and that the valuation upon which the tax was assessed is that at the time of the transfer; that this value is not affected by an increase or decrease in the market value of the property between the time of its transfer and the time it actually comes into the possession of the remaindermen.</p>

<p>Accounting — by temporary administrator after qualification of executor — who should be cited.</p> <p>Upon a motion for an order directing a temporary administrator to deliver the personal property in its possession to the executor of the will in a matter in which there was a very large number of legatees and many of them non-residents, held, that the appointment of an executor terminated the authority of the temporary administrator; that the latter should have an opportunity to have its accounts judicially settled, determined and made binding upon all parties by a judicial decree; that upon such accounting it is not necessary to cite any o£ the beneficiaries named in the will and that the only person necessary to be cited is the executor; and that the executor is in fact a trustee for the beneficiaries under the will and as such represents them, and his action, in the absence of fraud or collusion, is binding upon them.</p>

<p>Appeal by plaintiff from judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, dismissing complaint.</p>

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, eighth district, entered upon the dismissal of plaintiff’s complaint.

Appeal by the defendant from an order of the Municipal Court of the city of New York, borough of Manhattan, third district, denying a motion to dismiss the complaint.

<p>Pleading — in Municipal Court of city of New York — when summons may not be amended — actions — Municipal Court Code, § 78(1).</p> <p>Where in an action brought in the Municipal Court of the city of New York no complaint was served or filed and there was neither indorsed upon nor attached to the summons any statement of the nature and substance of the cause of action sued on, as required by the mandatory provision of section 78(1) of the Municipal Court Code, the summons may not be amended so as to comply with said section and an order denying a motion to dismiss the action will be reversed and the action dismissed.</p>

<p>Motion for a temporary injunction.</p>

<p>Motion for a peremptory writ of mandamus.</p>

<p>Injunctions — power of commissioner of licenses of city of New York.</p> <p>A motion to restrain the commissioner of licenses of the city of New York from interfering with the presentation of the motion picture photoplay entitled “ The Hand that Rocks the Cradle,” which deals with the subject of birth control, denied.</p>

<p>Action for the construction of a will.</p>

<p>City of New York — enforcement of ordinances of—vaults under sidewalks — nuisance — evidence.</p> <p>The city of New York has the right to enforce an ordinance prohibiting vaults under the sidewalk without a permit; space occupied for vault purposes beyond that allowed under permits constitutes a nuisance per se and in case o£ its continuance the owner of the building is liable to the city for maintaining the nuisance though the premises are in the possession of a lessee who is under obligation to make all repairs and to comply with all the ordinances and orders of the municipal authorities.</p> <p>In an action by the city against the owner of a building, the vaults under which extended beyond the space permitted, the plaintiff cannot recover for the use and occupation of the street in the absence of proof as to what damages were suffered by reason of such use and occupation,</p>

<p>City of New York—> Code of Ordinances — authority of fire commissioner — certiorari.</p> <p>The fire commissioner of the city of New York, under section 20 of article 2 of chapter 12 of the Code of Ordinances, is authorized to make an order requiring the owner of a building used for manufacturing purposes to install an automatic sprinkler system to extinguish fires.</p> <p>Upon the return of a writ of certiorari asking for the reversal of an order of the board of standards and appeals which reversed an order of the fire commissioner requiring the installation of an automatic sprinkler system in a certain building, as authorized by the Code of Ordinances, on the ground that on the date of said order no rules or regulations governing the installation of automatic sprinklers had been made either by the fire commissioner or the board of standards and apjjeals, held, that the order of reversal should be reversed and a motion to dismiss the writ denied..</p>

<p>Action for construction of a will.</p>

<p>Foreclosure — participation mortgages — who not entitled to maintain action — pleading — contracts.</p> <p>Where by a participation mortgage agreement it clearly appears that it was the intention of the parties to give to the senior participant the entire right to manage, control and deal with the mortgage and simply to preserve to the junior participant the right to receive from the senior participant the principal of his junior participation, with interest, the junior participant is not entitled to maintain an action to foreclose the mortgage and a demurrer to the complaint will be sustained.</p> <p>As a demand upon the senior participant would be a condition precedent to the bringing of a suit in foreclosure, the failure of the complaint to allege such demand was an additional reason why it did not set forth a good cause of action.</p>

<p>Demurrer to separate defense of answer.</p>

<p>Certiorari — writ of, when sustained—Greater New York Charter, §§ 242-b, yig-a — statutes — city of New York — meaning of “ block ”—• appeal.</p> <p>Under section 719-a of the Greater New York Charter, added by chapter 503 of the Laws of 1916, enacted practically at the same time as chapter 497 of the Laws of 1916, the superintendent of buildings in each of the boroughs of the city may refuse to approve plans for proposed buildings the erection of which would be in violation of the regulations adopted by the board of estimate pursuant to section 242-b of the charter as amended by chapter 497 of the Laws of 1916.</p> <p>The board of appeals created pursuant to section 6 of chapter 503 of the Laws of 1916, upon a review of the refusal of a superintendent of buildings to approve plans submitted for a proposed new building because in his judgment they would be violative of section 242-b of the Greater New York Charter, is limited to action on the plans before it, and, if not approved, the action of the superintendent of buildings should be affirmed; and, while the board might indicate modifications and changes necessary to have the plans meet its approval, it cannot act until proper plans are submitted.</p> <p>The word “block” in subdivision e of section 7 of article 2 of the regulations adopted by the board of estimate under section 242-b of the Greater New York Charter is used to designate that- section of a “square block” fronting on a street between two intersecting streets, the context showing that it is used as practically equivalent to the words “portion” as used in said subdivision e, which clearly means “front portion.”</p>

<p>Injunctions — action for, restraining defendant from using land as general store yard — nuisance — damages — judgments — statutes.</p> <p>It was the legislative intent (Laws of 1888, chap. 583, as amended by Laws of 1897, chap. 702; Laws of 1901, chap. 30) to restrict “Eastern Parkway ” in the borough of Brooklyn, as a residential street, and one in purchasing a lot thereon, upon which he erects an apartment house, has a right to assume that said street will continue as a private, residential section and that there will not be erected upon adjoining property obnoxious factories, buildings, or machinery which create a nuisance.</p> <p>After plaintiff, the owner of a plot of land on said “ Eastern Parkway,” had erected an apartment house thereon, defendant, having contracted for excavating and building a portion of the Eastern Parkway subway, purchased a lot immediately adjoining plaintiff’s property and is using it as a general store yard for timber, steel, machinery, sand, crushed stone and such materials as it requires for the construction of the subway. In an action for an injunction to restrain the operation of defendant’s plant it appears that the operation of the engines and boilers causes clouds of steam and vapor and other substances to enter the apartments of plaintiff making the use and occupation thereof physically uncomfortable to him and his tenants, disturbing their peace and their quiet, and as a result the rental value of the apartments has decreased and plaintiff’s property has diminished in value; that the operation of a concrete mixer and locomotive engines and ears causes continually loud, grinding and jarring noise and vibration. Meld, that the defendant may not escape liability for damage caused to plaintiff, upon the ground that it is engaged in a great public work conducted in a careful and prudent manner.</p> <p>That while plaintiff has suffered greater damage than he should be compelled to suffer for the benefit of the public, yet to enjoin defendant from the use of his property would be a delay in a great public improvement and a tremendous cost to defendant for the erection and construction of other store yards or other places in which the work could be carried on, and plaintiff will be given judgment permanently restraining defendant from using its property in violation of plaintiff’s rights, unless it pays such damages as may be found to reasonably compensate plaintiff for his loss.</p>

<p>Certiorari to review a special assessment for repaving a street in the city of Cortland.</p>

<p>Motion for a new trial.</p>

<p>Surrogate’s Court — jurisdiction of — executors and. administrators — accounting —■ wills — title.</p> <p>The jurisdiction of the surrogate, upon the judicial settlement of the accounts of an executor, to construe the will, does not include the power to construe any other will though on file in the Surrogate’s Court, a construction of which may possibly affect the ultimate title to property accounted for by the executor of the estate involved in the accounting.</p> <p>A proceeding for the judicial settlement of the accounts of an executor or a proceeding begun in the Surrogate’s Court solely for the construction of a will cannot be converted into one to quiet the title to real estate.</p>

Appeal by the defendant from a judgment in favor of the plaintiff, entered in the City Court of the city of New York after a trial before the court and a jury, and also from an order denying the defendant’s motion to set aside the verdict and for a new trial.

Appeal by plaintiff from so much, of an order of the City Court of the city of New York which required the plaintiff to pay defendants the sum of thirty dollars costs.

<p>Plaintiffs appeal from a judgment of the City Court of the city of New York entered in their favor for the sum of $775.13, upon the verdict of a jury, and from an order denying their motion for a new trial.</p>

<p>Nuisance — restaurant not, per se — injunctions — equity — pleading — Laws of 1914, chap. 470, as amended by Laws of 1916, chap. 497.</p> <p>The business of a restaurant is not in and of itself a nuisance, and a private individual cannot maintain an action to restrain the use of certain premises located on Fifth avenue in the city of New York, at which place is conducted the business of the “ Old Chelsea Restaurant ” by consent of the owners of the building1, upon the theory that the business use of a building in a residence district established under the zone statute (Laws of 1914, chap. 470, as amended by Laws of 1916, chap. 497), constitutes a nuisance.</p> <p>Equity will not undertake to restrain an act which violates a municipal by-law or ordinance unless the act is a nuisance per se.</p> <p>Complaint considered, and a demurrer thereto on the ground that it does not state facts sufficient to constitute a cause of action sustained, and the complaint dismissed.</p>

<p>Code Civ. Pro. § 3307(22) as amended by chapter 265 of the Laws of 1917 — sheriff of county of New York — attachment — poundage.</p> <p>Under section 3307(22) of the Code of Civil Procedure, as amended by chapter 265 of the Laws of 1917, in effect April 27, 1917, the sheriff of the county of New York is entitled to poundage when a levy has been made under a warrant of attachment and the attachment is vacated; and he is entitled to retain the property levied upon until his fees and poundage are paid.</p>

<p>Insurance (life) — provisions of policy of — insured may not revoke or change beneficiaries — may not borrow upon policy to full loan value.</p> <p>Where a policy of life insurance in terms discloses a positive intent that the fund created thereby shall not be trenched upon by the beneficiaries, and such intent is further emphasized by the affirmative and positive disavowal of the right of the insured to revoke or change the beneficiaries, the rights created under the policy are intended as and for a permanent trust fund' to be paid out and administered as provided by the policy, and neither the insured nor his assignee can borrow upon the policy to the full loan value thereof.</p>

<p>Action of ejectment.</p>

<p>Appeal from order of September 19,1916, assessing transfer tax.</p>

<p>Proceeding upon the construction of a will.</p>

<p>Transfer tax—report of appraiser — decedent’s estate — partnership — real estate — corporations.</p> <p>To enable a transfer tax appraiser to ascertain decedent’s interest in a firm, an accountant submitted an affidavit stating that the figures given as to the assets and liabilities of the firm were “ accurate statements from the books of the copartnership,” and he further stated that he had made deduction ranging from five to ten per cent, as depreciation from the value of the assets. Held, that if the figures given by him were “accurate statements from the books of the copartnership” his conclusion as to the value of decedent’s interest was incorrect because he failed to make any deduction from the figures supposed to have been taken from the books of the firm; if he made the deduction, then the figures given by him cannot be “an accurate statement from the books of the copartnership.”</p> <p>The market price of wheat, barley, oats and grain at the date of decedent’s death should be taken in ascertaining the value of his interest in the firm and not the cost price.</p> <p>A statement that there was no good will because the firm did no business with the public being inconsistent with the amount of accounts receivable and accounts payable, there should be some explanation of both items.</p> <p>Beal estate owned by a corporation in which decedent held stock should be appraised at its market value at the date of decedent’s death.</p> <p>Where the value of merchandise owned by a corporation in which decedent held stock is given but whether that amount represented the market value at the date of decedent’s death was not stated, the report of the appraiser should be remitted for correction.</p> <p>To justify the appraisement of a corporate note at considerably less than its face there should be a verified statement of the assets and liabilities of such corporation at the date of decedent’s death.</p>

Motion to amend nunc pro tuno a decree duly entered in a proceeding upon the judicial settlement of an account of the public administrator of the county of Queens.

<p>Motion for a new trial.</p>

<p>Contempt — who may he punished for — depositions — motions and orders — witness.</p> <p>A party guilty of disobedience of an order requiring him to appear for examination as a witness may be punished as for contempt or his pleading stricken out, or both. It is necessary, however, before a party can be so punished, that it be adjudicated that he was guilty of the contempt charged, and also that his conduct had a tendency to and actually did defeat, impair, impede or prejudice the rights or remedies of the complaining party and the order should contain these necessary recitals.</p> <p>Upon motion to punish a corporation defendant for contempt and to strike out its answer for the failure of its secretary to appear in obedience to an order for its examination before trial, it appeared that though the defendant’s attorneys were familiar with the contents of the moving affidavits and of said order no copy of the motion papers was served upon them, and there was no affirmative proof showing tender or payment of fees to the witness. Meld, that an order adjudging defendant in contempt and striking out its answer was ineffective and it was not incumbent upon the witness to obey its directions, and a motion to set aside said order will be granted.</p>

<p>Demurrer to separate defenses in supplemental answer.</p>

<p>Insurance (accident) — double indemnity — public conveyance — negligence — carriers.</p> <p>Where plaintiff was injured while alighting from a taxicab which at the time he and another had the sole and exclusive right to occupy with the chauffeur, he may not recover under a provision of a policy of accident insurance by which a double indemnity was agreed to be paid if the insured received a bodily injury while “on a public conveyance * * * provided by a common carrier for passenger service.”</p>

Achon for injunction to restrain former employee from revealing trade secrets and continuing in the employment of a competitor.

<p>City of Rochester — charter of — ordinances of —■ municipal corporations — constitutional law — condemnation proceedings — statutes.</p> <p>The legislature may authorize a municipality to acquire property outside its boundaries for proper municipal purposes.</p> <p>The legislature may authorize the acquisition by a city for municipal purposes of land around an inland lake navigable in fact but not in law although such acquisition may prevent access to the lake except by permission of the city.</p> <p>Under the general title “An act constituting the charter of the city of Rochester ” special proceedings relating to the condemnation of real property applicable to property outside the city may be incorporated in the charter without offending article 3, section 16 of the state Constitution relating to the passage of private or local bills with subjects not embraced in their titles.</p> <p>Under article 1, section 7 of the state Constitution the legislature may prescribe that at least one of the commissioners appointed by the court in proceedings to acquire lands outside the boundaries of a city shall be a resident and freeholder of the city not interested in any of the property to be taken or of kin to any person interested therein.</p> <p>Sections 444 and 446 of the charter of the city of Rochester authorizing an appeal only by the city from the “ disapproval ” or non-confirmation by the common council of the report of the commissioners of appraisal and an appeal only by property owners from its confirmation by the common council do not offend the constitutional provision relating to the equal protection of the laws where the court on an appeal in either case is authorized to confirm or set aside the award as to any party and remit the proceedings to the same or new commissioners for further action.</p> <p>Section 444 of the charter of the city of Rochester authorizing the discontinuance and abandonment of condemnation proceedings by the common council upon a consideration of the report of commissioners of appraisal and malting its action a bar for one year thereafter to the institution of new proceedings to acquire the same property does not offend the constitutional provision relating to just compensation or due process of law.</p> <p>Section 444 of the charter of the city of Rochester providing for the confirmation of the report of the commissioners of appraisal by the common council instead of by the court is constitutional.</p> <p>The question of the public use of property sought to be condemned is a judicial one but the necessity of the property for such use is an administrative one.-</p> <p>Where lands are sought for the purpose of protecting an. existing water supply of a city the approval of the conservation commission is not necessary.</p> <p>Under section 436 of the charter of the city of Rochester the board of estimate and apportionment is not required to fix a price for lands sought to be condemned in advance of negotiations and it is a sufficient negotiation if the property owner offers to sell at a price which is unsatisfactory to the board of estimate and apportionment.</p> <p>Property sought to be condemned must be described with reasonable certainty and references to deeds and other papers for boundary lines and other uncertain descriptions are insufficient.</p> <p>Under section 438 of the charter of the city of Rochester authorizing amendments of the proceedings to correct defects or informalities the original ordinance adopted by the common council may be.amended so as to correct errors in the description of the property taken and make it conform to the map filed provided the land taken is not substantially increased or decreased.</p> <p>Every presumption is in favor of the validity of the provisions of a city charter and they should be upheld unless there is a substantial departure from the organic law.</p>

<p>Criminal law — application for certificate of reasonable doubt — appeal — Code Crim. Pro. § 527.</p> <p>A certificate of reasonable doubt under section 527 of the Code of Criminal Procedure may be granted as to rulings upon the trial and also as to any other grounds for reversal which the appellate court may consider, and which the court to which the application is made believes ought to be reviewed by the appellate court, but where there is no reasonable doubt upon the whole ease as to whether or not the judgment of conviction should stand the application should be denied.</p>

<p>Transfer tax — gifts — deeds — wills — contracts — devise — valuable consideration — Tax Law, § 220(4).</p> <p>A transfer tax being upon the right of succession, a gift other than by will is not subject to such a tax, unless it comes within the meaning and intendment of section 220(4) of the Tax Law.</p> <p>The word “deed” as used in section 220(4) of the Tax Law has no reference to a conveyance of property made in the ordinary course of business for a valuable consideration, but is limited to conveyances intended as gifts.</p> <p>Where testator, who had been divorced, conveyed certain real estate to a woman to whom he had devised and bequeathed all the rest, residue and remainder of his estate, both real and personal, in furtherance of an ante-nuptial agreement in which there was a mutual conditional covenant of marriage and an independent covenant on her part to care for and support him during his life and see that he received proper care, and it appears that she fully performed such agreement on her part until his death and that in the deed of conveyance no reference was made to the special provisions of the ante-nuptial agreement, it must be held that the property passing by the deed was not transferred as a gift to the grantee in contemplation of death but that it was conveyed for a valuable consideration and was not subject to a transfer tax.</p>

Appeal by defendant from a judgment of the City Court of the city of New York in favor of plaintiff, entered upon a verdict of a jury and from order denying motion for new trial.

Appeal by the defendant from a judgment of the Municipal Court of the city of Mew York, borough of Manhattan, second district, entered in favor of the plaintiff and from the order denying the defendant’s motion to set aside the verdict and for a new trial.

<p>Actions — who may maintain — residence in enemy country — pleading— when motion to dismiss complaint denied — trial.</p> <p>A motion to dismiss the complaint in an action commenced in 1910, in which two of the plaintiffs are residents and citizens of Germany, on the ground of the residence of said plaintiffs in an enemy country, will be denied.</p> <p>If the fact of such residence be a defense to the action it goes to the disability of the plaintiffs to maintain the action because of the existing state of war with the German empire; such a defense must be set up by answer and the issues thereby raised should be tried and not disposed of summarily on affidavits.</p>

<p>Appeal — to Court of Appeals — how appeal taken — judgments—insurance (casualty)—superintendent of insurance—contracts.</p> <p>Where the superintendent of insurance takes possession of the assets of a casualty company against which a judgment has been recovered in an action on an insurance contract and the order of liquidation directs him to deal with the property, contracts and rights of action of the company in his own name as superintendent of insurance, an appeal to the Court of Appeals from a unanimous affirmance by the Appellate Division of a judgment against the company must be taken and prosecuted in the name of the superintendent of insurance.</p>

Appeal by defendant from a judgment of the City Court of the city of New York and from an order denying defendant’s motion for a new trial.

Appeal by defendants from so much of a judgment of the Municipal Court of the City of New York, borough of Manhattan, ninth district, for defendants, upon discontinuance, as merely awards thirty-seven dollars and fifty cents costs, and also from two orders denying defendants’ motion for retaxation of costs.

<p>Negotiable instruments — where delivery of, is procured by fraud — bills, notes and checks — burden of proof — indorsement and delivery — judgments — equity. •</p> <p>Where the delivery of a negotiable instrument to the original holder is procured by fraud the burden of proof is upon subsequent holders to show that they are free from actual or constructive knowledge of the fraud and that they are purchasers for value.</p> <p>When circumstances are sufficient to put on inquiry the holder of a negotiable instrument, having no actual knowledge or notice of a defect in the title, he is chargeable with knowledge of all the facts that such an inquiry would have revealed.</p> <p>A check for $1,950 made by plaintiff to the order of defendant W was indorsed and delivered by him to defendant B who indorsed and deposited it in the defendant bank for collection. Upon the face of the check was written in ink “ Submitted with bid on Haiti-San Domingo Bldg.,” and upon the back were indorsed the names of W, B and one McK in addition to the stamp of the defendant bank and that of the bank through which the check passed before it was paid by the bank upon which it was drawn. The impression of a seal was superimposed on the indorsement of W bearing in the outer circle the words "Republic of Haiti, Richard B. Whitlock,” and in the inner circle the words “ Commercial agent. Commission expires Jan.. 1, 1917.” The check, with others, was procured by W by writing to contractors in the city in which was the bank upon which the cheek was drawn stating that the two governments he represented contemplated the erection of a building at the Panama-Pacific Exposition and that the checks sent on represented a certain per cent of the bids of the respective contractors for erecting said building. In an action to recover the proceeds of the check made by plaintiff, on the theory that equity should declare a trust therein in his favor, it ■ appeared that W had no authority to represent those governments and that all of the cheeks were fraudulently procured. The defendant MeK claimed to have advanced to W in various payments $1,375 on the faith of the check in suit and plaintiff’s counsel urged that the words on the face of the check together with the seal impressed on the back thereof, taken in connection with the fact that the check was made payable to the personal order of W and the further fact that MeK knew that W was using the check for his personal purposes, constituted such notice to McK that it could not be said that he advanced the money on the check in good faith. Held, that the facts were such as to put McK on inquiry which, if he had made, would have disclosed such information that he would not have paid any money to W; that McK, therefore, should bear the loss and plaintiff is entitled to judgment.</p>

<p>Suit for injunction to restrain operation of defendant’s railroad in Plymouth and Bridge Streets, New York city, borough of Brooklyn.</p>

<p>Controversy as to validity of order, dissolving a school district.</p>

<p>Motions by defendant for new trials.</p>

<p>Application for parole.</p>

<p>Action for negligence.</p>

<p>Specific performance—when decreed — contract for purchase and sale of real property — title — encroachments — statutes.</p> <p>A contract for the purchase and sale of certain real property in the city of New York described the premises as on the corner of Madison avenue, 400 feet west of Park avenue, the physical line of Madison avenue at that point adopted by owners of property in the block. In a vendee’s action to recover the down payment and expenses of examination of title it appeared that prior to 1872 property on the block in which the premises are situated was bounded on the west by New avenue which carried the westerly line of the block 405 feet west of Park avenue and that in that year (Laws of 1872, chap. 220, § 2) the legislature undertook to extend the easterly line of Madison avenue, as it existed above and below, through the four blocks between One Hunded and Twentieth and One Hundred and Twenty-fourth streets. This would have widened New avenue by five feet and changed it to Madison avenue and confined the westerly line of the avenue lots to a distance of 400 feet west of Park avenue, and though no condemnation proceedings were taken the block was built upon in conformity with the new line proposed as Madison avenue and conveyances were made with reference thereto by describing it as 400 feet west of Park avenue. Held, that the fact that the easterly line of New avenue as laid out was five feet west of the line actually adopted did not make the defendant’s title unmarketable.</p> <p>The encroachments of the wall of the building, erected in 1881, four and one-quarter inches and the chimneys eight and one-half inches on One Hundred and Twentieth street are permissible within the terms of chapter 646 of the Laws of 1899.</p> <p>Encroachments by show windows, stoop, areas and steps in excess of those permitted by ordinance, and by sills and lintels up to four inches and cornices to the extent of two feet four inches, being easily removed or restricted within proper limits without seriously affecting the building, did not render the title unmarketable.</p>

<p>Action up on a contract.</p>

<p>Actiok upon á policy of marine insurance.</p>

<p>Action for a separation.</p>

<p>Service — of summons — when motion to set aside granted — corporations — agency.</p> <p>A Canadian corporation which maintained a factory in this state organized a new corporation therein, retained all of the capital stock and assigned to it all of its contracts guaranteeing ■ the completion thereof by the assignee. Held, that the New York corporation was not the agent of the Canadian company and that the latter was not doing business in this state so as to make the service of a summons on the New York corporation binding on the Canadian company.</p>

<p>Mandamus — application for writ of — municipal corporations — franchise to use streets for private gain not legally granted — pleading — Manufacturing Act of 1848 — Code Civ. Pro. § 2084.</p> <p>A writ of mandamus is not always demandable as an absolute right; an application therefor is addressed in the first instance to the sound discretion of the court at Special Term, reviewable by the Appellate Division, and where it apears that the facts are such as to justify the court in refusing the writ, as matter of discretion, the exercise thereof will not be interfered with unless it appears that there has been an abuse of judicial discretion.</p> <p>Upon an application for a writ of mandamus, relator is always bound to show that his legal right to the performance of the particular act of which performance is sought to be compelled is clear and complete.</p> <p>Where it appears that neither by the Manufacturing Act of 1848 (chap. 40), under which defendant was incorporated in 1887 for the purpose of manufacturing, using and selling electricity and electrical and mechanical apparatus in the city of Brooklyn, nor by any other statute, did defendant company acquire a franchise to use the public streets for private gain in carrying on a commercial business, and it further appears that not having received any franchise from the state for that purpose the common council of the former city of Brooklyn could not and did not legally grant to defendant any right to use the streets, avenues and public places of the city to carry on its business, a resident of the city is entitled to apply for a peremptory writ of mandamus to compel defendant to remove certain electric light poles and wires from certain of the city streets, alleged to be maintained by defendant without lawful authority.</p> <p>Where the answer of defendant, in addition to putting in issue the various material allegations of the petition, sets forth at considerable length facts upon which it bases its contention that the application should be denied, many of which facts are denied in the replying affidavits, the court upon refusing to grant a peremptory writ may in view of the importance of the questions involved, and of the issues of fact raised by the pleadings, grant an alternative writ, the trial to proceed pursuant to section 2084 of the Code of Civil Procedure.</p>

<p>Taxes — upon real property — review of assessments — Greater New York charter — city of New York — Tax Law, § 21-a.</p> <p>The general Tax Law is to be read in connection with the provisions of the Greater New York charter, and control in the absence of conflicting charter requirements, and, as the charter does not deal with the procedure as to how assessments may be reviewed, the provision of section 21-a o£ the Tax Law, which provides that “ In all cities there shall be an additional column in the assessment roll before the column in which is set down the value of real property, and in such additional column there shall be set down the value of the land exclusive of buildings thereon. The total assessment only can be reviewed,” is controlling.</p> <p>In proceedings to review assessments on certain real property in the city of New York for the years 1915, 1916 and 1917, it appears that the unimproved assessment valuation for 1915 was $702,100 and the improved valuation $855,200; that in 1916 the unimproved valuation was the same as in the previous year and the improved valuation $871,500 and that in 1917 the unimproved was $704,500 and the improved valuation $874,200. By stipulation, in exact accord with section 21-a of the Tax Law, the parties agreed as to the value of the improvements in each of these years each of which values was less than the amount included in the assessments. The court found as a fact that the valué of the property unimproved in each of these years was worth at least as much more than the amounts for which it was assessed as the agreed value of the improvements is less than their assessed value in the same years. Held, that the increased valuation should be added to the agreed valuation of the improvements and the total assessments for the three years must be sustained.</p>

<p>Application for a certificate of incorporation under the Membership Corporations Law.</p>

<p>Naturalization — application of German subject for citizenship held over for action until termination of war.</p> <p>The filing of a declaration of intention to become a citizen is not an “ application ” for admission to become a citizen.</p> <p>The application of a German subject to become a citizen of the United States filed on April 6-, 1917, the day on which by proclamation of the President a state of war was declared to exist between the United States of America and the German Empire, will be held over for action until after the termination of the war, though the applicant long before that day had filed his declaration of intention to become a citizen.</p>

<p>Application for approval of a certificate of incorporation.</p>

<p>Motion by judgment debtor to vacate an order directing his examination.</p>

<p>Action in replevin.</p>

<p>Judicial sales — in foreclosure — marketable title — motions and orders — encroachments.</p> <p>An encroachment of one-half inch for a distance of about forty feet consisting of a three-story brick wall of the building of the adjoining property will not release a purchaser of property sold at a sale in foreclosure and a motion to compel him to complete his purchase will be granted.</p>

<p>Ejectment —judgments — pleading — contracts — deeds — evidence.</p> <p>After the service of an answer in an action of ejectment brought by the people of the state denying plaintiff’s title and asserting title in defendant, the then forest, fish and game commissioner purporting to act for plaintiff entered into a written agreement with defendant that the claims of title to the lands involved be settled; that defendant should take judgment dismissing the complaint and adjudging that it was the owner of the lands in question and should deliver to plaintiff a deed thereof reserving the right to enter upon a part of the lands for a period of ten years and cut and remove therefrom the soft wood timber eight inches and above in diameter and that defendant should also convey subject to a similar reservation a certain other parcel of land to plaintiff. Pursuant to such agreement, deeds of conveyance were delivered to plaintiff who went into possession of the property and has since paid the taxes thereon, defendant removing the soft wood timber. Held, that while the judgment so entered was void and could not be used as evidence for or against either party, having accepted the provisions of the agreement giving it the right to remove the timber from the land defendant’s motion to have the judgment set aside and vacated on the ground that the forest, fish and game commissioner had no authority to enter into the agreement, and that he did not bind the state, will be denied.</p>

<p>Verdict — motion to set aside, when granted — affidavits — trial — misconduct of juror.</p> <p>Upon a motion to set aside a verdict and for a new trial neither the affidavits of jurors, nor of other parties, detailing what jurors had said about the ease which would tend to impeach the verdict rendered therein, may be considered.</p> <p>Where a juror does not deny that pending the trial of a negligence action he visited the scene of the accident, as stated in the affidavit of disinterested parties, and neither he nor any of his fellow jurors who made affidavits read in opposition to a motion to set aside the verdict in favor of defendant stated that the subject of the juror’s visit which was made more than nine months after the accident occurred, and what he discovered on that visit, was not discussed or argued by the jury during their deliberations, the motion will be granted.</p>

<p>Replevin — pleading — evidence — bankruptcy — corporations — judgments.</p> <p>Within four months of the bankruptcy of a corporation of which plaintiff was the vice-president and a director, he purchased merchandise of it, and the agreed price, $465.30, was credited on an indebtedness of $2,000 due to him from the corporation. Upon presentation of the usual order received by plaintiff from the business manager of the corporation delivery of the merchandise was refused. In an action in replevin the answer, beside putting in issue the allegations of the complaint, pleaded as a counterclaim that the sale was void as a preferential payment made within the four months’ period. The evidence established that the transaction was an ordinary purchase and sale in due course without improper intent either upon the part of plaintiff or the business manager of the corporation and without contemplation on the part of either of the financial condition of the corporation which at the time of the purchase was in failing circumstances. It was further established that plaintiff had no knowledge of the precarious condition of the corporation, nor of any facts which should have put him upon inquiry, or have given him reasonable cause to believe that it was either in failing circumstances or actually insolvent. Held, that plaintiff was entitled to judgment awarding him possession of the merchandise and dismissing the counterclaim, with costs; that in the circumstances the presumption that plaintiff had knowledge of the financial condition of the corporation was rebutted.</p>

<p>Action for an injunction.</p>

<p>Action to restrain a nuisance and for damages occasioned thereby.</p>

<p>Arrest — who not entitled to be discharged from custody on ground of exemption — bonds — habeas corpus — Military Law, § 235.</p> <p>The Veteran Corps of Artillery of the state of New York is neither a part of the National Guard nor of the Naval Militia and a member of said corps who has given a bond for the jail limits is not entitled to be discharged from custody on the ground that he is exempt from arrest by reason of being in the military service of the state.</p>

<p>Jury — retirement of, to deliberate on verdict — communication with jury by trial judge — parties.</p> <p>After a jury has retired to deliberate upon its verdict the trial judge may not enter the jury room and communicate with the jury even at its request without the consent, expressed or implied, of the parties to the action.</p>

<p>Transfer tax — what subject to — evidence — savings banks — Banking Law, § 249.</p> <p>While section 249 of the Banldng Law declares that the making of a deposit in a savings bank in the form of a joint survivorship account shall be conclusive evidence in any action or proceeding of the intention of both depositors to vest title in the survivor, yet such presumption must yield to proof of the actual purpose or agreement of the parties to the contract.</p> <p>Where the sister-in-law of decedent, an attorney at law, sent money to him with a request that he deposit it in savings banks in such convenient manner that he could make withdrawals as she might request, and at the time of his death there were four several accounts in savings banks, and it clearly appears that there was never any purpose on his part to acquire title in any event to any of such moneys, no part thereof is subject to a transfer tax as a part of his estate.</p>

<p>Petition for judicial settlement of the accounts of a temporary administrator.</p>

<p>Proceeding upon the final judicial settlement of the account of administrators.</p>

<p>Transfer tax — what subject to — computation of — life, estates — dower — wills — trusts.</p> <p>Where decedent’s widow in addition to a life estate in all his property for the support of herself and son is given the right to use so much of the principal as may be necessary for such support in ease the income of the estate computed at five per cent on the principal shall at any time fall below $1,500, and at her death the remainder of the estate is left in trust for the life use of the son, at whose death the residue is to be paid to his issue, if any, if none, then to nephews and a niece, the value of the widow’s dower, there being no intent manifest on the face of the will putting her to an election between dower and the legacy, will be deducted before computing the transfer tax.</p> <p>The life estate of the son in' the remainder of the estate after the death of the widow is also subject to a transfer tax.</p>

<p>Proceedings on report of transfer tax appraiser.</p>

<p>Telegraph companies — action by, to recover for services — evidence — cable service —• contracts.</p> <p>Under normal conditions, and as between sender and addressee, when a domestic telegram has been delivered to a telegraph company and accepted for transmission there is a presumption of fact that it has been duly forwarded and received by the addressee. This presumption, however, does not apply in an action by a telegraph company to recover for services in transmitting a message as its effect would be to cast upon the sender the burden of proving non-performance of the contract which forms the basis of the action.</p> <p>As between sender and addressee a presumption as to the delivery of a cablegram would not apply because of the war conditions in Europe.</p> <p>Plaintiff, engaged in transmitting cablegrams between New York and a point in Ireland, upon receipt of a cablegram transmitted to Ireland forwarded it by another cable company to its destination. Held, that senders of cablegrams to European points at the present time are chargeable with knowledge of the disturbed and unsettled conditions affecting cable service and that therefore any contracts by plaintiff for cable transmission to Europe amounted merely to engagements that it would receive messages in the regular course, and transmit them through its operator at New York city over its cable running to Ireland.</p> <p>Plaintiff not having assumed any greater obligation, it had established a cause of action to recover for services by proof of the transmission of messages over its cable to Ireland.</p>

<p>Summary proceedings — allegations contained in petition — forcible entry and detainer — landlord and tenant — appeal—lease — Code Civ. Pro. §§ 2233, 2235.</p> <p>Sections 2233 and 2235 of the Code of Civil Procedure, particularly so far as they authorize the bringing of summary proceedings in case of forcible entry and detainer, afford a separate and distinct remedy not dependent upon the relationship of landlord and tenant, are plainly remedial and should be liberally construed.</p> <p>Where a petition in summary proceedings alleges in substance that the owner of the premises leased them to petitioner and the defendants jointly and for their joint use, and that petitioner entered upon and was in actual occupation and possession thereof and that defendants “wrongfully and unlawfully and by force and intimidation removed and ejected” petitioner therefrom and have since continued to and now occupy the same, it is reversible error to dismiss the proceed" ing on the ground that the conventional relation of landlord and tenant does not exist between the parties.</p> <p>Lehman, J., dissents.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of The Bronx, second district, in favor of plaintiff, after a trial before a judge without a jury.

Appeal by plaintiff from a judgment of the Municipal Court of the ■ city of New York, borough of Manhattan, third district, in favor of defendant, after a trial by the court without a jury. ■

<p>Negotiable instruments — promissory notes — liability of indorser, when fixed — bankruptcy.</p> <p>Where the makers of a promissory note were adjudicated bankrupts the liability of the indorser becomes fixed upon due presentment and giving him due notice of nonpayment and he can be relieved from liability only by payment in full of the principal and interest.</p>

<p>Carriers — of merchandise — liability of — what constitutes an act of God — negligence — evidence — actions.</p> <p>An unprecedented flood constitutes an act of God and a loss caused thereby is an exception to the liability of a carrier of goods as an insurer and it can only be held liable upon proof that its negligence contributed as a proximate cause to the destruction of the goods.</p> <p>On the night of the day that a car-load of paper delivered' by plaintiff to a carrier had been delivered to the defendant carrier it was destroyed during an unprecedented flood which caused the Hudson river to overflow its banks and cover the tracks in defendant’s freight yards where plaintiff’s ear had been placed. In an action to recover for the destruction of the paper it appeared that in the flood a ear of unslacked lime becoming wet set fire to all surrounding cars and that by reason of the height of the water over the tracks defendant could not remove or protect the car. Upon reversing a judgment in favor of plaintiff and ordering a new trial, held, that defendant was not negligent in failing to act after the flood had rendered futile all attempts to save the car in which plaintiff’s goods were shipped; that if it was negligent at all it was because of failure to take proper precautions earlier when the river began to rise.</p> <p>That while the amount of care in that regard which could reasonably be demanded of defendant would naturally depend upon how far the conditions existing on the day of delivery of plaintiff’s car to defendant, and on the day before, gave reasonable ground for expecting that the flood would rise so high as to endanger goods in defendant’s possession, the admission of evidence that on the day before delivery of plaintiff's car to defendant a weather observer in government service had issued flood warnings, without proof that the forecast was called to defendant’s attention or at least that it had such general circulation as to justify the inference that defendant’s employees knew of it, was clearly erroneous and prejudicial.</p>

. - Appeal by defendants from a judgment of the City Court of the city of New York, entered upon a verdict detected by the court.

Appeal by defendant from an order of the City Court of the city of Few York, denying a motion to stay the plaintiff from further prosecuting this action until the termination of the present war between the empire of Germany and the United States of America, which motion was made upon the ground that the plaintiff is an alien enemy.

<p>Assignments — of rents — mortgages — when defendant not liable for rents received as mortgagee in possession — personal property.</p> <p>Since a mortgagee in possession has an interest in the land and receives the rent as an incident to such interest, upon no theory can one having no interest in the land and no privity with the mortgagor claim such rent as personal property belonging to him.</p> <p>A prior unrecorded assignment of rents which conveys no interest of any kind in the land and need not be recorded cannot reduce the interest or legal or equitable rights of a subsequent mortgagee.</p> <p>The owner of certain premises executed and delivered to plaintiff an assignment of the rents thereof until a certain sum then owing to plaintiff was fully paid. Later, while a portion of said indebtedness was still unpaid, the owner of the premises gave a mortgage thereon which was assigned to defendant and on the same day executed and delivered to him an assignment of the rents. Both instruments were recorded and within two months defendant, with the consent of the mortgagor, entered into possession of the premises and has since collected the rents. More than a month after defendant entered into possession of the premises the assignment of rents to plaintiff was recorded. Meld, that defendant was not liable to plaintiff for the rents received by him as mortgagee in possession.</p> <p>Bum$, J., dissents.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, in favor of plaintiff, after a trial by a judge without a jury.

<p>Motion for judgment on the pleadings.</p>

<p>Accounting — “voting trustees”—appropriating moneys alleged to belong to plaintiff as depositing stockholder—judgment for defendants.</p>

<p>New trial — newly discovered evidence in action for loss of services of son who contracted drug habit through agency of defendants.</p>

<p>Executors and administrators-—judicial settlement of accounts — claim for services in nursing one on promise of decedent to pay therefor disallowed.</p>

<p>Proceeding upon judicial settlement of the account of an executor.</p>