Volume 101 — New York Miscellaneous Reports

<p>Motion to vacate and set aside an undertaking on appeal.</p>

<p>Motion for injunction pendente lite.</p>

<p>Certiorari — allegations contained in petitions for write of — questions to be determined upon hearing on return to writs — street railways</p> <p>motions to quash writs granted — Code Civ. Pro. § 2140.</p> <p>A motion to quash a writ of certiorari may be granted either upon the papers upon which it was granted or upon additional affidavits and either before or after return thereto, and where it appears to have been improvidently granted the motion should prevail.</p> <p>Where the allegations of a petition for a writ of certiorari to review an order of the public service commission for the first district, directing relators to provide additional cars for public use on their several railroads, though substantially based upon the provisions of section 2140 of the Code of Civil Procedure, stating the questions to be determined upon the hearing on the return to the writ, are not supported by any allegations of fact whatsoever, and taken as a whole amount to nothing more than a sworn statement that the commission was wrong in making the order sought to be reviewed, that its action was unjustified, that petitioners are agreed and that they ask an opportunity to review said orders, and it appears that relators have had an opportunity to supplement the bare allegations of their petitions by replying affidavits and have failed so to do, and an examination of all- the papers fails to disclose a single fact from which it can be judicially determined that the order of the commission is even prima facie unreasonable, unwarranted or unlawful, the court cannot determine that there is reasonable ground to believe that error has been committed, and motions to quash the writs will be granted.</p> <p>The public service commissions should not be hampered and obstructed in their efforts to secure increased transit facilities for the public by proceedings for a court review of their determination except in eases where it clearly appears that it is “ necessary to keep them within the law and protect the constitutional rights of corporations over which they were given control.”</p>

<p>Action to foreclose mechanics ’ liens.</p>

<p>Constitutional law — unconstitutionality of chapter 521, Laws of 1917 —. statutes.</p> <p>Certiorari — review of order of state excise commissioner — statutes — injunctions.</p> <p>A statute (Laws of 1917, chap. 521) empowering the state excise commissioner, with the approval of the governor whenever in his opinion public safety requires and on the application of the mayor of a city, to suspend privileges under liquor tax certificates during the present war in such parts of the city as are in proximity to camps, barracks or munition factories, and which does not provide for the giving of notice to the parties to be affected and no opportunity to be heard on the question whether the suspension should be ordered, is unconstitutional as a taking of private property without due process of law for a public use without compensation ; such statute is also unconstitutional in that it attempts to delegate legislative power.</p> <p>On certiorari to review an order of the state excise commissioner suspending relator’s privileges under his liquor tax certificate procured long before the enactment of said statute and prohibiting him from selling alcoholic beverages then on hand, the state excise commissioner will be enjoined from enforcing such order of suspension pending a decision on the writ.</p>

<p>Mechanic’s lien—filing of — bankruptcy — priority — foreclosure — waiver.</p> <p>Bankruptcy — liens — waiver.</p> <p>Where three days after the completion of a building the owner became bankrupt, a notice of mechanic’s lien filed by a materialman giving the name of the bankrupt as the name of the owner of the property is good.</p> <p>A mechanic’s lien filed within the ninety-days limit but not until the owner of the property had been adjudicated a bankrupt has priority over the claims of the trustee in bankruptcy, as the lien is created not. by the act of filing it but exists at all times from the furnishing of materials or labor.</p> <p>Where a mechanic’s lien creditor of a bankrupt, in its proof of claim filed with the referee in bankruptcy, asserts its right to the lien, there is no waiver thereof.</p> <p>Where such creditor accepted dividends from the bankrupt estáte only after the trustee in bankruptcy, the creditors’ committee and the defendants in an action to foreclose the lien for an unpaid balance due had stipulated in writing that the acceptance of such dividends should be without prejudice to plaintiffs’ claim, that their lien filed was a valid one, and to their right to enforce the same for the payment of the balance due, there was no waiver of the lien.</p> <p>While in bankruptcy proceedings a secured creditor is not entitled to vote at a creditors’ meeting the fact that' through the fault or inadvertence of the referee or trustee a creditor is permitted to vote at such meeting when his lien has been asserted in his claim as filed is no waiver of the lien.</p>

<p>Mandamus — when peremptory writ allowed — tax sales in Rensselaer county — city of Troy — county treasurers — real property—Tax Law, §§ 122, 157, 160.</p> <p>The court in awarding a peremptory writ of mandamus will mould it according to the just rights of all the parties, and where the petition sets forth a, substantial right the proceedr ing will not fail because the relator asks too much or mistakes to some extent the relief to which he is entitled.</p> <p>By virtue of section 160 of the Tax Law (Laws óf 1909, chap. 62) the provisions of articles 6 and 7 thereof do n-ot affect any law relating to the sale of real estate for taxes in the city of Troy and the special statutory provisions under which county treasurers have conducted their tax sales, in Rensselaer county are still in force so far as the city of Troy is concerned and as to such sale a county treasurer is not required to give the notice to the comptroller required by section 157 of the Tax Law.</p> <p>The special statutory provisions relating to sales for taxes in the county of Rensselaer outside of the city of Troy having been repealed by implication by chapter 908 of the Laws of 1896, as to such sales the county treasurer is required to give the notice to the state comptroller called for by section 157 of the Tax Law and to conduct the sale under the provisions of section 122 thereof.</p> <p>A peremptory writ of mandamus allowed as to certain tax sales in all of the county of Rensselaer outside of the city of Troy, including the city of Rensselaer created by chapter 359 of the Laws of 1897, and denied as to tax sales in the city of Troy.</p>

<p>Partition — action for — title — affidavits — service by publication — jurisdiction — judicial sales.</p> <p>A purchaser at a partition sale who refuses to complete his purchase is required to point out the defect relied upon in the title and if it depends upon an impossible or remote contingency or upon the construction of inconsistent, conflicting or ambiguous statements in the affidavits on an application for an order for service by publication the court will disregard the defect and will give the statements in the affidavits such a construction if possible as will sustain the proceedings.</p> <p>Where jurisdiction to issue an order for service of a summons upon unknown defendants by publication depends upon the construction to be given to conflicting, inconsistent or ambiguous statements in the affidavits upon which the application for the order was made, the supplemental summons bringing in unknown defendants and the complaint in the action will be examined to ascertain the theory of the application for the order and the intention of the plaintiff and a construction of these statements in-the affidavits will be adopted if possible which will sustain the proceedings rather than one which will invalidate them.</p>

<p>Sureties — when released — contracts — default.</p> <p>A surety without notice will be released from Ms obligation to meet a deficiency under a contract of employment to sell and deliver merchandise where the contract without Ms knowledge has been modified in a substantial respect, or where it has been terminated and subsequently renewed without the consent of the surety and the default occurred during the renewal period.</p>

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

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

<p>Contracts — to compensate for personal services — consideration — evidence.</p> <p>Specific performance — contracts — consideration — wills — pleading — evidence — dismissal of complaint.</p> <p>A contract to compensate another for personal services rendered to the promisor, since deceased, should not only be certain and definite and founded upon an adequate consideration but should be in writing, or if. based on oral testimony it should be given or corroborated in all substantial particulars by disinterested witnesses.</p> <p>By the will of her brother-in-law plaintiff was given a certain sum “for her services as housekeeper for me after the death of my wife, and in addition to what she has and may receive from me during my lifetime ”; her daughter was given a certain sum “ for assisting her mother about my housekeeping as aforesaid” and the remainder of the estate was given to testator’s daughter. In an action to compel the specific performance of an alleged contract on the part of said daughter to make a will in plaintiff’s favor, the complaint alleged that plaintiff’s brother-in-law, becoming dissatisfied with his will because he had not made adequate provision for plaintiff to compensate her for her services, desired to so change his will that his daughter should have the use of the residuary estate for life with remainder to plaintiff and that testator’s daughter in order to induce him to refrain from changing his will and in order to induce. plaintiff to continue her services to him agreed and promised to hold the residuary estate in trust for plaintiff and would by proper will give, devise and bequeath all of said residuary estate which should be received by her' to plaintiff. The only witness as to the consideration for the alleged agreement was the daughter of plaintiff who testified that testator told his daughter that he wanted to change his will so as to give all his property to plaintiff after said daughter was through with it. Held, that plaintiff's daughter and her only heir was interested in the enforcement of the alleged contract and that as the consideration therefor was not shown by evidence other than that of said daughter, and her testimony not being corroborated, plaintiff had failed to prove the cause of action and the complaint must be dismissed.</p>

<p>Domicile — intention to abandon — wills — evidence — transfer tax.</p> <p>The evidence in a transfer tax proceeding upon the issue as to the last domicile of a decedent who in his last will and in a codicil thereto described himself as “of the city of New York temporarily sojourning in Paris” where he had a home, but who died at sea on his way to New York, considered, and held, not to show intention to abandon New York and acquire France as his domicile, and that he was at the time of his death a resident of the state of New York.</p>

Motion- by the plaintiff for final judgment in an action for the partition of real property and for the fixing of costs and allowances to be awarded by such final judgment.

<p>Motion to pass receiver’s account in a foreclosure action, and for a direction as to the payment of the balance in his hands.</p>

<p>Bankruptcy — trustee in — executions — motions and orders — trusts — Real Property Law — Bankruptcy Act, § 47, clause 2 (a) as amended — Code Civ. Pro. § 1391.</p> <p>The words “ other personal property, which can not be reached by execution ” in section 98 of the Eeal Property Law, which provides that “ Where a trust is created to receive the rents and profits of real property, and no valid direction for ■accumulation is given, the surplus of such rents and profits, •beyond the sum necessary for the education and support of the beneficiary, shall be liable to the claims of his creditors in the same manner as other personal property, which can not be reached by execution,” define the surplus income of spendthrift trusts, by implication at least, as a kind of personal property that can not be reached by execution.</p> <p>A trustee in bankruptcy being vested under clause 2 of subdivision a of section 47 of the Bankruptcy Act, as amended in 1910, with all the rights, remedies and powers of a judgment creditor holding an execution duly returned. unsatisfied, a motion made by a trustee in bankruptcy, within the time allowed by law for the filing of claims against the bankrupt’s estate, for an order directing that an execution issue under section 1391 of the Code of Civil Procedure against the income from certain trust funds for the benefit of the bankrupt and directing the testamentary trustee to pay over, etc., will be granted.</p>

<p>Counterclaim — pleading — carriers — damages — Interstate Commerce Act.</p> <p>In an action against a shipper to recover freight charges on an interstate shipment, the defendant may counterclaim for damages to the goods growing out of the shipment though under the Interstate Commerce Act freight charges can not he paid except in currency.*</p>

<p>Mandamus — when application for, denied — municipal corporations —■ expenses connected with the maintenance of city and county hall borne equally by city of Buffalo and county of Erie — statutes.</p> <p>Under a statute (Laws of 1880, chap. 31, § 4, as amended by-chapter 83, Laws of 1892), providing that all the expenses connected with the maintenance of a city and county hall shall be borne equally by the city of Buffalo and the county of Erie, and that all appropriations therefor shall be paid to the trustees who shall yearly ascertain the amount required and certify the same to the board of supervisors of the county and to the common council of the city, and, further, that it shall be the duty of the said board of supervisors and the said common council to provide in equal proportions the amount of money required and place the same in the treasury of said city and county, respectively, subject to the order of the trustees for such purpose, the said common council in making appropriations for the ensuing year may take into consideration the unexpended balances of preceding years remaining in the hands of the trustees having charge of the building.</p>

<p>Injunctions — to stay execution of warrant pending appeal — landlord and tenant — summary proceedings — City Court Act of Buffalo — Code Civ. Pro. § 2265(2).</p> <p>The City Court Act of Buffalo (Laws of 1909, chap. 570, as amended) providing a comprehensive "plan for stays of execution of orders and judgments appealed from of all kinds, a motion under section 2265(2) of the Code of Civil Procedure, for an injunction to stay the execution of the warrant pending an appeal from a final order of the City Court of Buffalo in a summary proceeding to dispossess plaintiffs as tenants holding over after the expiration of the term, will be denied.</p>

<p>False imprisonment — allegations of complaint in action for — trial — jury — damages — pleading — executions — malice.</p> <p>In an action for false imprisonment it is not necessary to show want of probable cause or malice in the sense of ill-will or even recklessness.</p> <p>In such an action, the jury may consider the quality of the act and the intent with which it was done and, if it is found that there was ill-will or recklessness involved, to award punitive damages, and it is only to meet the claim for such damages that mitigating circumstances may be shown.</p> <p>The complaint in an action for false imprisonment alleged substantially that the defendant wantonly and recklessly caused an execution against the person of the plaintiff to be issued without lawful authority and in violation of the laws of the state of New York and of the United States and in violation of the rights and the liberties of the plaintiff, by which he suffered great indignities and was in prison in a certain designated county jail. As a partial defense and in mitigation of damages the answer alleged that defendant was of the opinion that the execution mentioned in the complaint and growing out of a judgment recovered by him against plaintiff in a certain action in which plaintiff herein was plaintiff and defendant herein and others were defendants was a proper process to be issued and delivered to the sheriff in actions of the kind and character upon which said execution was issued; that it was issued by defendant herein without any malice and in the orderly course of his business; and it was further alleged in and by said partial defense that any act or deed of defendant in connection with the issuance of the execution referred to in the complaint did not cause plaintiff herein any damages whatsoever or affect in any way his character or standing in the community in which he resided. The character of the previous action was not stated and there was no allegation showing the reason for the alleged opinion of defendant. Held, that a demurrer to said partial defense will be sustained.</p>

<p>Motion to set aside a verdict.</p>

<p>Action by the superintendent of banks to enforce the statutory liability of' the stockholders of the Carnegie Trust Company in liquidation.</p>

<p>Injunctions — when denied — Columbia University — resistance to draft ordained by lawful authority.</p> <p>Where a student at Columbia University, in the course of a public address in' which he counseled resistance to the draft ordained by lawful authority, said “We have no love for the kaiser; but as much as we hate the German kaiser we hate still more the American kaiser,” and, further, that there had been draft riots in the Civil War but there would be a draft revolution during the war of 1917, and a report of the meeting at which the address was made appeared in the public press the next day, a motion for an injunction pendente lite in an action to procure a decree requiring the university to allow him to continue in the institution as a student after notice that he would not be permitted to receive any further instruction therein will be denied.</p>

<p>Action for negligence.</p>

<p>Motion to dismiss indictment.</p>

<p>Divorce — action for absolute — domicile — evidence — judgments.</p> <p>Within two years after his marriage to plaintiff in this state, defendant without justification left her and their child and went to another state where in less than two years he obtained a decree of divorce on the ground of her cruelty. Though she was served with process in this state she never entered an appearance in the action and at no time lived in the state where the decree was granted. Held, that she was entitled to a decree of absolute divorce op the ground of defendant’s misconduct with one whom, after the divorce granted to him, he married in another state, a further marriage ceremony between them being celebrated in this state a few days later.</p>

<p>Applications for the appointment of guardians of the persons of three infants.</p>

<p>Application for an order granting leave to an administratrix to enter into the possession of real property of which a decedent died seized. •</p>

<p>Proceedings for determination by this court of the question as to whether the testator’s widow, during her lifetime, had elected to take her dower in his real property, and to waive a legacy or pecuniary provision given to her in lieu thereof.</p>

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

<p>Certiorari proceedings to review special franchise assessments.</p>

<p>Action to review a decision of the Industrial Commission of the Labor Department.</p>

<p>Action to set aside a sale of fixtures.</p>

<p>Constitutional law — mandamus — statutes — unconstitutionality of — Optional City Government Law — election of city officers.</p> <p>Elections — of city officers in city of Niagara Falls — duties of board of election commissioners — Election Law.</p> <p>Where the duty to perform an act depends solely on whether a statute is unconstitutional and void, the question may be deter- ■ mined on a petition for a writ of mandamus.</p> <p>• The curative statute (Laws of 1916, chap. 530) by which the legislature undertook to repeal chapter 300 of the Laws of 1904, • as amended (charter of the city of Niagara Falls prior to the adoption of plan C of the Optional' City Government Law, enacted by Laws of 1914, chap. 444) and to grant a new charter to said city and validate the election of the mayor and four couneilmeñ who had been selected pursuant to the Optional City Government Law which had been declared unconstitutional, is unconstitutional and void, and chapter 300 of the Laws of 1904 is still the charter of said city,, and under the provisions thereof .there are to be elected at the general election to be held in said city on November 6, 1917, certain city officers.</p> <p>Candidates for the city offices provided for by chapter 300 of the Laws of 1904, as amended, may now be nominated by independent certificates pursuant to the provisions of the Election Law on or before October 17, 1917, and the board of election commissioners is required to do all acts necessary to have the names of the candidates so nominated submitted to the electors at the general election to be held.</p>

<p>Liquor Tax Law, as amended by chapter 623 of Laws of 1917 — application for writ of certiorari denied — statutes — evidence.</p> <p>Upon an application for a writ of certiorari to review the determination of commissioners appointed by the mayor of the city of Lackawanna, pursuant to the provisions of the Liquor Tax Law, as amended by chapter 623 of the Laws of 1917, held, that one who became the owner of real estate therein before said statute took effect was legally qualified to act as commissioner.</p> <p>That under subdivision 7 of section 8 of said statute of 1917 the purpose and intent is declared to be to reduce the number of places wherein the trafficking in liquor may be continued to a given ratio on October 1, 1917, and to prevent after that date the issuance of any more liquor tax certificates in excess of the given ratio.</p> <p>That upon the evidence the commission so appointed by the mayor of said city has complied with paragraph 5 of subdivision 3 of section 8 of the statute in designating the places to be discontinued and those to be continued.</p> <p>That as there is nothing in subdivision 3 of section 8 of said statute of 1917 upon which a claim can be based that the commission is required to perform quasi judicial functions and no provision for a procedure contemplating the examination of witnesses or the taking of evidence, their acts in making the selections are not judicial in character and not reviewable by certiorari.</p>

<p>Election Law, § 52 — power of court to determine eligibility of candidate for member of assembly — resignation of candidate from city office too late — duties of board of elections — Sunday.</p> <p>In a proceeding to determine the duties of the board of elections under the Election Law, the court has power to determine the eligibility of a candidate for member of assembly.</p> <p>The hundredth day previous to the general'election to be held November 6,1917, being Sunday, the resignation on the following day of a candidate for member of assembly from a city office is tod late, and it is the duty of the board of elections of the county, under section 52 of the Election Law, to recognize ■the substitute petition designating another for the office of member of assembly.</p>

<p>Judicial sales — real property — summary proceedings — landlord and tenant — Code Civ. Pro. § 2232.</p> <p>A purchaser of real property at a judicial sale who finds others in possession cannot, except in the particular cases provided for by section 2232 of the Code of Civil Procedure, without further proof assume that they are his tenants, and cannot by service of a thirty days’ notice have the' benefit of summary proceedings which are applicable only where the conventional relation of landlord and tenant is shown to exist by agreement.</p>

<p>Wills — terms of — construction of — when legacies not chargeable on real estate — evidence.</p> <p>Where the intention of a testator to charge legacies upon his real estate is not clearly ascertainable from the terms of his will or from extrinsic evidence, legacies should not be so charged.</p>

<p>Executors and administrators — when executor not compelled to file bond — accounting — bonds — Code Civ. Pro. § 2569(6).</p> <p>An executor to whom letters testamentary have been issued may not be compelled to file a bond; if thereafter his circumstances do not afford the legatees and creditors adequate security their remedy is by an application under section 2569(6) of the Code of Civil Procedure for the removal of the executor.</p> <p>The failure of an executor to appear before the referee to whom his accounts have been referred and testify in regard to the objections filed thereto is not a ground for his removal, the burden of sustaining the objections being upon the objectors.</p> <p>An allegation in a petition to compel an executor to file a bond, or in the alternative to revoke his letters testamentary, that petitioners were unable in the proceeding to effect personal service of the citation upon the executor is insufficient to warrant the. court in removing him.</p> <p>It is not sufficient that the petition alleges in the words of the statute that the executor’s circumstances are such as not to afford adequate security to the creditors and legatees interested in the administration of the estate, but facts must be alleged from which the court may conclude that the financial condition of the executor does not afford such security.</p>

<p>Wills — construction of—trusts — vested remainder — intestacy.</p> <p>Where the general scheme of a will indicates that it was the intention of testator, who was survived by a son and two daughters, that the son, or in case of his death his issue, should ultimately receive the major part of the estate which he divided into three parts to be held on separate trusts during the lifetime of each of his children, and the son died leaving him surviving three children all of whom are living, and thereafter S., one of testator’s daughters, died without issue, under a clause of the will that “ Upon and immediately after the death of my said daughter Sarah, I give and bequeath the said equal third part of my estate hereby given in trust for her to my said daughter Carrie and my said son William, in case they shall both be then living, to be equally divided between them forever; and in case my said daughter Sarah shall survive my said daughter Carrie, then and in such case, I give and bequeath the whole of the said equal third part hereby given in trust for my said daughter Sarah, from and after her death, to my said son William, or in case of his previous death, then to his lawful issue forever,” the gift over on the death of S. will be construed as a vested remainder in the surviving daughter, C., and the son, and in the event of his death before S. his issue became entitled to receive the one-half their father would have taken had he survived S.</p> <p>While such construction may not seem to give effect to the words “in case they should both be living,” a literal application of said phrase would enforce intestacy as to the trust fund, a result certainly not within the contemplation of testator.</p>

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

<p>Workmen’s Compensation Law, § 13 — employee may not maintain separate action to recover from employer — services — statutes.</p> <p>Under section 13 of the Workmen’s Compensation Law, an injured employee may not maintain a separate and independent action to recover from an employer who neglects or refuses, after due request, to provide any of the medical, surgical or hospital services referred to in said statute.</p>

<p>Appeal from an order of the Municipal Court, borough of Brooklyn, third district, denying defendants’ motion to vacate and set aside an execution, and to vacate and set aside a judgment against them rendered on November 29,1913.</p>

<p>Appeal by defendants from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, first district, in favor of the plaintiff and against the defendants, rendered on the 28th day of February, 1917.</p>

Appeal by defendants from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, sixth district, in favor of the plaintiff and against the defendants.

<p>Corporations — receivers — jurisdiction — pleading — accounting — actions — General Corporation Law, § 35.</p> <p>Under section 35 of the General Corporation Law the title to the assets of a corporation upon its dissolution vests in the directors as trustees for the creditors and stockholders unless other persons shall be appointed by the legislature, or by some court of competent jurisdiction.</p> <p>Where no directors are to be found, the duty to collect and administer the assets of such a corporation devolves upon a receiver to be appointed, but no cause of action to reach assets in the hands of a third party vests in the stockholders.</p> <p>A complaint by the stockholders of a corporation for an accounting by defendant of property of the corporation, of which he was not a director, which came into bis hands after its dissolution by expiration of its charter, alleging that defendant received said property from two directors now deceased who were in possession at the time of said dissolution, with full knowledge that it represented corporate assets, and, further, that there are no creditors of the corporation and that the directors took no steps toward the settlement of its affairs and the division of its assets, and there are no allegations to support the ease as one prosecuted in behalf of the corporation or of a receiver in its behalf, is subject to demurrer upon the ground that it is insufficient in substance, and also upon the further ground that there is a defect of parties defendant, there being none before the court who may assert legal title to the property in suit.</p> <p>The question whether there are debts of the corporation to be paid cannot be determined as an issue between the stockholders and the defendant in the present action, as, until the statutory requirements for the ascertainment of the claims of creditors are met, there can 'be no administration of the assets upon the theory that the stockholders are entitled to the property. Therefore, the allegation that there are no creditors of the corporation, admitted by the demurrer to the complaint, cannot aid the plaintiffs. The cause of action resides in a receiver who must first be appointed to assert and to protect the rights of all persons, whether creditors or stockholders, who may have an interest in the distribution of the property when recovered from the defendant.</p>

<p>Motion by an assignee for the benefit of creditors for an order allowing certain claims and for instructions as to other claims.</p>

<p>Motion to inspect ballots cast at last primary election held September 17, 1917.</p>

<p>Liquor Tax Law—provisions of, for appointment of commission by-town boards — villages — towns.</p> <p>Certiorari — determination of local commission final — Laws of 1917, chap. 623, § 8.</p> <p>Before the amendment of section 8 of the liquor Tax Law by chapter 623 of the Laws of 1917, the town of Kinderhook, Columbia county, was entitled to and had sixteen certificated places for the sale of liquor to be drunk on the premises, four in Kinderhook village, seven in the village of Valatie and five in the outlying territory. Under said amendment, the commission appointed by the town board, to reduce the number of places in the town as “nearly as may be” in proportion to the number of places then trafficking in liquor, certified to two in the village of Kinderhook, three in the village of Valatie and one in the town outside of the said villages. The state commissioner of excise, after notifying the county treasurer of Columbia county not to issue any certificates for the town of Kinderhook, filed a designation of places which were to be allowed to traffic in liquors after October 1, 1917, one to the village of Kinderhook, three to the village of Valatie and two to the town outside of said villages. Held, that as under said section 8, as so amended, the determination of the local commission was final and conclusive, the designations by it being made before September 1, 1917, the application of a resident of the village of Kinder-hook whom the state commissioner of excise had omitted from his designation and of a resident of the village of Valatie whom he had also omitted from his designation substituting for him the name of some other person, both of said applicants being designated by the local commission, that the county treasurer issue to each of said applicants a liquor tax certificate to traffic in liquors in places designated by the local commission will be granted.</p>

<p>Penalties — action to recover—pleading — labels—Agricultural Law, § 201.</p> <p>The manufacturer o£ “ Durkee’s Salad Dressing and Meat Sauce” which is not an imitation nor offered for sale under the distinctive name of another article, and which contains no unwholesome added ingredients, is not required to disclose Ms trade formula in order that freedom may be secured from adulteration or imitation, and the complaint in an action against him to recover a penalty for an alleged violation of section 201 of the Agricultural Law (as amd. by Laws of 1914, chap. 494), because of his failure to make a statement on the label used on such product as to the ingredients thereof, will be dismissed, with costs.</p>

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

<p>Survivorship — accounting — executors and administrators — evidence — decedents’ estates — insurance (life).</p> <p>A decedent, his wife and daughter perished in a common disaster and there was no evidence to show which of them was the last survivor. At the time of his death the decedent carried two policies of insurance upon his life. One of the administrators of the wife’s estate claimed that her repre-</p> <p>sentatives were entitled to the proceeds of the two policies in question and to the entire net distributive amount of the decedent’s estate as her distributive share, hut the accounting administrator rejected the claim. In determining the validity of the same, and the question whether the daughter survived the decedent and her mother or either of them: Held, that</p> <p>under the common law one claiming through survivorship must prove such survivorship; that there is no presumption of survivorship in a case where persons perish in a common disaster, and that in the absence of evidence the fact of survivorship is assumed to be unascertainable and property rights are disposed of as if death occurred at the same time.</p> <p>That under the policies in question the interest of the wife was contingent and a mere expectancy which did not vest until the death of the insured; that survivorship was a condition precedent to the vesting, and that the onus of proving such survivorship was upon the claimant.</p> <p>That as there was no evidence to prove such survivorship the death benefit must be disposed of as though both husband and wife had died at the same instant and that it must be distributed as though she had died before her husband, in which event it vested in him and was payable to his personal representative.</p> <p>That there being no evidence on the subject, and the law indulging in no presumption, no determination can be made as to whether the daughter survived either or both of her parents.</p> <p>That the other property for which the administrator accounts must be likewise distributed, as though the decedent, his wife and his child had died at the same time.</p>

<p>Bankruptcy—adjudication in — trustee in — judgments—foreclosure — motions and orders — garnishee order — injunctions — sheriffs — poundage—Code Civ. Pro. §§ 1391, 3307(23) —Debtor and Creditor Law, § 150.</p> <p>On May 16, 1917, after a deficiency judgment in an action to foreclose a mortgage had been docketed against the defendant, a school teacher employed by the city of New York, a garnishee order issued against her salary under section 1391 of .the Code of Civil Procedure was filed with the corporation counsel,, and on June 1, 1917, she was adjudged a voluntary bankrupt and the claim against her under the deficiency judgment was duly scheduled. On July 7, 1917, the bankruptcy court' granted an order restraining interference with her salary under the garnishee order. Held, that a motion made by her after her discharge in bankruptcy had been granted, August .22, 1917, to vacate the garnishee order should be granted and the city comptroller directed to pay her so much thereof as was withheld since the date of her adjudication as a bankrupt, the amount of salary withheld under the garnishee order from its date to the adjudication in bankruptcy to remain in the hands of said comptroller until the trustee in bankruptcy take such steps as he may be advised, with notice to the sheriff that his right of poundage under section 3307(23) of the Code of Civil Procedure, if claimed, may be protected.</p> <p>All proceedings in bankruptcy relate to the time of the bankruptcy adjudication, and a contention that under section 1391 of the Code of Civil Procedure plaintiff was entitled to ten per cent of the bankrupt's salary down to the time that the judgment for deficiency should be canceled pursuant to section 150 of the Debtor and Creditor Law, which provides in substance that at any time after one year has elapsed since the bankrupt was discharged from his debts he may apply to the court in which the judgment for deficiency was rendered against him for an order directing said judgment to be canceled and discharged of record, is untenable, the provisions of the Bankruptcy Act being paramount to the state statutes.</p>

Motion by plaintiff to confirm report of a referee and motion by defendant Chait for removal of referee and vacation of Ms report.

<p>Action to impress a lien on real property.</p>

<p>Action of ejectment.</p>

<p>Motion by defendant to change place of trial from Erie to Tioga county, on the ground that Erie is not the proper county.</p>

<p>Motion to remit to a referee his report.</p>

<p>Trusts — deeds of — wills — who entitled to corpus of trust fund — transfer tax.</p> <p>Decedent executed a deed of trust by which he transferred a certain sum to the trustees to pay the income to him during his life, and if his wife survived him to pay the principal to her within thirty days after his death, but if she died before payment was actually made then to pay the principal to such persons as she designated in her will, and if she died intestate to pay the principal to his executors as part of his residuary estate; if his wife died during his lifetime then to pay the principal to him.</p> <p>Held, that so far as any act of the donor was concerned the deed of trust was irrevocable and his wife having survived him more than thirty daj's became absolutely entitled to the corpus of the trust fund as of the date of the execution of the trust deed, her right of possession being deferred until his death.</p> <p>That the value of the corpus of the trust fund for the purpose of a transfer tax should be taken as of the date of decedent’s death and that the property transferred by said deed of trust should not be added to the value of the property transferred to decedent’s wife under his will.</p>

<p>Appeal from an order fixing the transfer tax.</p>

<p>Negligence — action for personal injuries — evidence — new trial.</p> <p>Where plaintiff in an action to recover £or personal injuries, based on negligence, testified that while passing along the sidewalk in- front of defendant’s premises she stepped on something and then fell into the coal-hole and that when she looked the cover was about two feet away, the doctrine of res ipsa loquitur applies, and a judgment dismissing the complaint at the close of plaintiff’s case will be reversed and a new trial granted.</p>

Appeal by defendant from a judgment in favor of the plaintiffs entered in the City Court of the city of New York upon the verdict of a jury.

Appeal by defendant from a judgment of the City Court of the city of New York entered upon a verdict directed by the court.

<p>Appeal by defendant from a judgment of the City Court of the city of New York, entered upon a verdict, and from an order denying defendant’s motion for a new trial. The notice of appeal also brings up for review two intermediate orders of said court.</p>

<p>Election Law — provisions of, as to registration of students at seminaries maintained by Franciscan order — when name stricken from registry list.</p> <p>A student at the seminary of learning known as “ St. Anthony’s-on-the-Hudson,” maintained by the Franciscan order, who abandons his Christian name by which he was formerly known and takes a new name as a member of said order and receives instruction as a candidate for the Roman Catholic priesthood, is not entitled to register in the election district in which the seminary is located and his name should be stricken from the registry list.</p>

<p>Action for negligence.</p>

<p>Hearing on writ of certiorari to review a refusal to grant a liquor tax certificate.</p> <p>The relator conducted a place for the sale of intoxicating liquors at the Lake Shore Hotel in the town of Irondequoit under a liquor tax certificate expiring October 1, 1917. On May 22, 1917, the legislature amended the Liquor Tax Law by chapter 623 of the.Laws of 1917 so as to reduce the number of certificates issued in towns of the state to the ratio of one for each 500 inhabitants (§ 8, f 9, subd. c), and in order to reduce the number of certificates to correspond with this ratio provided for the appointment of three commissioners by the town board subject to the approval of the State Commissioner of Excise (§ 8, f 9, subd. c (2)) who were to investigate on or before August 10, 1917, as to the location of places within the town where trafficking in liquors was engaged in and inquire as to the conduct of such business at such places and upon the completion of the investigation and inquiry to determine as to the places within the town not exceeding the ratio of one for each 500 of the population thereof where trafficking in liquors should be continued for the year beginning October 1, 1917 (§ 8, 9, subd. c (3)), and prepare a written state-</p> <p>ment containing a description of the places where such trafficking in liquors should be continued and the places for which a liquor tax certificate should not be issued for the ensuing year. (Id.) It is declared by the statute that its purpose is to reduce on and after October 1, 1917, the number of places or premises in which the business of trafficking in liquors may be conducted to the ratio named and to prevent the issuance of any additional certificates until the ratio has been exceeded. § 8, If 9, subd. c (7). The determination of the commission was made final and conclusive. § 8,19, subd. c (4). There were thirty places for which liquor tax certificates had been issued in the town of Irondequoit when the statute went into effect and it reduced the number for which certificates could lawfully be issued for the year beginning October 1,1917, to nine. The function of the commission therefore was to select nine places out o'f the thirty holding liquor tax certificates for the issuance of certificates for the year beginning October 1, 1917. The relator’s place was not selected and he has brought this proceeding contending that the statute is unconstitutional in that it vests in the commission an arbitrary authority to select the places for which certificates should be issued and that his constitutional and statutory rights have been violated.</p>

<p>Motion for damages pending an appeal in an action for replevin.</p>

<p>Discovery — inspection—when application for disclosure of books, papers and documents granted — actions — pleading — evidence — Code Civ. Pro. § 803.</p> <p>Under section 803 of the Code of Civil Procedure and rule 14 of the General Rules of Practice a disclosure of books, papers and documents relating to the merits or defense of an action may be had to frame a pleading or to enable a party to prepare for trial where the evidence is competent, relevant, material and necessary.</p> <p>The cases in which such disclosure will be granted group themselves into three classes: Where the books, papers and documents are the foundation of the action; where the applicant has a special interest in the evidence and where the books, papers or documents, in which he has no special interest, contain evidence which the party desires to enable him to prepare his pleading or to prepare for trial.</p> <p>The application, however, in any ease will be granted only in the exercise of a sound discretion in the ascertainment of truth and the advancement of justice, but it must appear that the evidence is competent,.relevant and material to the issues, unknown to the party seeking it and in the possession of the adverse party.</p> <p>Such an application will be granted even in an equitable action for an accounting between the trustee of a corporation voluntarily dissolved and the executrix of a deceased trustee where the existence of the confidential relationship which is the basis of the accounting is admitted in the pleading.</p>

<p>Application for the appointment of a guardian of an infant.</p>

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

<p>Action for partition.</p>

<p>Certiorari to review the action of the state printing board in awarding the contract for legislative printing.</p>

<p>Liquor Tax Law — commissioners appointed to investigate places where traffic in liquor may he continued — statutes — Laws of 1917, chap. 623.</p> <p>Chapter 623 of the Laws of 1917 which directs the three commissioners appointed by the mayor of a city to investigate as to the location of places within the city where trafficking in liquor was engaged in and to determine before September 1, 1917, the places within the municipality where such traffic may continue during the year beginning October 1, 1917, requires the commissioners to act as a board, and where due notice of the time and place of meeting is given to each commissioner, one of whom did not attend, the written statement, containing a description of the places where the traffic in liquor may be continued, as required by the statute, and signed by the other two commissioners, is a compliance therewith.</p>

<p>Telephone companies — contracts — provisions of — when customer not entitled to restoration of service.</p> <p>A provision of a contract for a telephone service that the rate specified is payable in advance in equal monthly installments remains in force if the service is continued beyond the term of the contract.</p> <p>Where a contract is “for a term beginning with the establishment of service and ending one year from the first day of the following month and thereafter until terminated by ten days’ notice in writing by either party to the other,” and upon nonpayment of the monthly rental in advance the telephone company discontinues its service and removes its apparatus, the customer is not entitled to a restoration of the service unless a new contract is made.</p>

<p>• Executors and administrators — judicial settlement of accounts of public administrator — alien enemies.</p> <p>Upon the judicial settlement of the accounts of a public administrator, it will be decreed that payments due to subjects of Germany or any of its allies from the funds to be distributed shall be made either at the end of the'war to the alien himself, or, in the meantime, to the duly constituted authority of the United States entitled to receive the same.</p>

Summary proceeding under section 57, Public Service Commissions Law. Defendant, a domestic corporation, applied to the common council of Mount Vernon for consent to the operation of motor vehicles on the streets of that city, as provided by section 26 of chapter 667 of the Laws of 1915, and received the consent of that city. It made a like application to the common council of the city of New Rochelle, which did not grant its consent.

<p>Banks — mistake of, in failing to honor depositor’s check — damages — trial.</p> <p>Where a bank through its own mistake fails to honor a depositor's cheek at a time when he had sufficient funds to meet it, and thereafter he is refused credit by the party from whom he bought goods in payment of which the check was given, he is, in an action against the bank, entitled to have the question of damages sent to the jury.</p>

Appeal by defendants from an order of the Municipal Court of the city of New York, borough of Manhattan, first district, directing the examination of defendants’ attorney as a witness before trial, and from an order denying a motion to vacate the order of examination.

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of defendant.

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

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

<p>Statute of Limitations — what sufficient to stop running of — executors and administrators — Code Civ. Pro. § 382(1).</p> <p>Evidence — documentary — witness — Code Civ. Pro. § 829.</p> <p>Where letters testamentary upon the estate of one who died December 23, 1905, were not issued until July 17, 1908, and a claim against the estate for services rendered to the decedent covering a period up to January 11, 1905, and presented to the executor January 11, 1911, was not rejected until June 18, 1915, after the commencement of the proceeding for the judicial settlement of his accounts, an admission of the validity of the claim contained in a conversation between the claimant and the executor’s attorney, as to which there was no contradiction, was sufficient to stop the running of the six-year Statute of Limitations ■ under section 382(1) of the Code of Civil Procedure.</p> <p>Items of disbursements made by claimant properly proven ' by testimony, free from objection under section 829 of the Code of Civil Procedure and properly corroborated by disinterested witnesses or by documentary evidence, allowed.</p>

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

<p>Wills — provisions of — devise of real property — insufficiency of assets to pay debts — executors and administrators — mortgages — trusts — remainders — bequests — legacy — abatement.</p> <p>A devisee of real property subject to mortgage must satisfy it out of his own property without resorting to the executor of his testatrix unless by the will payment of the mortgage is otherwise directed.</p> <p>A testatrix whose assets at the time of her death were insufficient to pay the legacies and to set up the trusts created by her will died seized of fourteen pieces of real estate, ten of which, at that time, were subject to mortgage and included two pieces specifically devised, the income from one of which,. since that time, had not been sufficient to pay the necessary carrying charges. The executors and trustees were authorized and directed to keep the estate in good order and repair, pay all taxes, assessments or liens which might be assessed or levied thereon, keep the same insured, pay off all mortgages and incumbrances on real estate which might exist thereon at the decease of testatrix, and they were also empowered to sell, mortgage or lease any or all property not specifically devised, as they might from time to time deem best for the purpose of carrying out the provisions of the will. Meld, that it was the intention of testatrix that all mortgages, being liens upon her property at the time of her death, should be paid from her general estate. ‘</p> <p>A certain clause of the will provided that upon the death of the various life beneficiaries of income the principal should be returned to and become a part of the residuary estate, or, in certain instances, should go to the issue of the partieular beneficiary, if any, or in default of such issue the same should become a part of the residuary estate. By another clause of the will all the rest, residue and remainder of the estate, both real and personal, not otherwise specifically disposed of, was devised and bequeathed to a nephew of testatrix for life and on his death the trust for his benefit should cease and the property divided among his surviving children and the issue of any deceased child per stirpes. Held, that the remainder of the various trust funds must first be applied in payment of general legacies.</p> <p>A bequest to an incorporated cemetery association, in trust to apply the income therefrom to earing for and keeping in good order the burial plot of testatrix in said cemetery, is to be deemed a part of her funeral expenses, does not abate and should be paid in full.</p> <p>By the third clause of her will testatrix bequeathed to her executors and trustees the sum of $5,000 to be used by them for the erection of a vault upon her burial plot, but on account of the size of said plot the rules of the cemetery prohibited the erection of a mausoleum, and it appeared by the affidavit of one of the executors that a very ample allowance' for the performance and completion of the work necessary to the fullest compliance possible with the directions of the will would not exceed the sum of $1,500. Held, that as the trust so created had partially failed it was valid as a charitable use, and under the doctrine of cy-pres the executors may set up a trust in the sum of $1,500 and carry out as near as possible the trust as set forth in said clause of the will, without prejudice to the other legatees; that the balance of the sum set apart by said clause becomes a part of the general assets of the estate and should be first applied to the payment of the general legacies.</p> <p>Testatrix bequeathed to the “ Home for Old Men and Aged Couples,” etc., the sum of $5,009 on the death of her husband’s niece “ as hereinafter mentioned ” to whom by the next clause of the will was bequeathed the sum of $20,000! for life and.on her death the sum of $5,000 “ as hereinbefore mentioned ” was given to said “ Home.” By abatement the fund for the benefit to the said niece was reduced to the sum of $8,920.32. Held, that the bequest to the “Home” was a demonstrative legacy payable out of the principal of the trust fund, and that a proposed method of distribution thereof by which the “Home” was to receive one-quarter thereof plus its proportionate share of the remaining three-quarters of said fund, which under the proposed decree is to be distributed ratably among the other legatees entitled thereto, was erroneous.</p>

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

Appeal by defendants from an order of the Municipal Court of the city of New York, borough of Manhattan, ninth district, granting plaintiffs’ motion to set aside a verdict rendered in favor of defendants.

Appeal by defendants from an order of the. Municipal Court of the city of New York, borough of Manhattan, first district, denying a motion to vacate and set aside a judgment and warrant of attachment against defendants.

Appeal by plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, second district, dismissing the complaint at the close of the plaintiff’s case.

Action by plaintiff to secure a decree directing that a certain contract in writing be canceled and discharged of record as a lien and incumbrance on real property.

<p>Mortgages — assignment for illegal purpose — action to compel reassignment not maintainable.</p> <p>Where the assignment of a bond and mortgage was for the purpose of putting them out of the reach of the plaintiff in a negligence action brought against the assignor, and about a month thereafter the assignee, who advised the making of the assignment, by an instrument in writing declares that the bond and the mortgage belong to Ms assignor and that he, the assignee from whom no consideration passed for the assignment, makes no claim to the bond and mortgage, the law will leave the parties where it finds them, and an action to compel the reassignment of the bond and mortgage and an accounting for interest cannot be maintained.</p>

<p>Habeas corpus — when writ of,, dismissed — parent and child — adoption — Domestic Relations Law, § 70.</p> <p>Under section 70 of the Domestic Relations Law a habeas corpus proceeding will not lie by the mother of children legally adopted for permission to see them, and the writ will be dismissed and the children remanded to the custody of their foster parent without prejudice to any proceeding which the mother may bring on the equity side of the court for the relief sought.</p>

<p>Motion for security for costs.</p>

<p>Motion to change venue.</p>

<p>Lease — provisions of — landlord and tenant — action for reformation — judgments.</p> <p>Where at the expiration of a five years’ lease, with privilege to the tenants of a renewal for a like term upon the expiration of the contract on terms “ then to be agreed upon,” there was no mistake of fact as to its provisions, wrhich were fully known to the parties, and neither fraud nor deception was practiced to procure the tenants’ assent to the instrument, which was prepared by the landlord who assumed in good faith to explain the renewal clause, the tenants cannot be heard to complain that they misunderstood the legal import of their contract, which as to the renewal clause was void for indefiniteness.</p> <p>Where at the expiration of the term and upon the tenants’ refusal to surrender possession of the premises they bring an action for the reformation of the lease claiming that they are entitled to a renewal for an ensuing term of five years, but it appears that the landlord declined to. arrange any terms for such continued lease and demanded possession of the premises, he is entitled to judgment accordingly.</p>

<p>Insurance (indemnity) — policy of — automobiles — criminal law — actions — negligence.</p> <p>In an action upon a policy by which defendant agreed to indemnify plaintiff against loss by reason of use of his automobile there can be no recovery of the amount of a judgment recovered against the plaintiff, in an action for personal injuries caused by the operation of the automobile where it is proved on the trial, as pleaded in the answer, that the accident was caused through the commission of a misdemeanor by the driver of the automobile, who was under eighteen years at the time, and that such criminal act was participated in by the plaintiff as principal because he authorized and commanded such use of the automobile by the driver knowing his age.</p>

<p>Action for money had and received.</p>

<p>Bonds — action to recover — highways — city of New York.</p> <p>In an action to recover upon bonds given to the city of New York by defendant and her testator, covenanting to reimburse the city for the amount of' salary paid to said testator as superintendent of highways of one of the city boroughs for two certain years, which might thereafter accrue or become due to the legally appointed superintendent of highways of said borough, it is incumbent upon the plaintiff, the assignee of the bonds, to show that the city was required to and did pay to him the whole or some part of said salary which it had already paid to defendant’s testator for services as superintendent of highways during the years in question, and as the city which during that time never paid the salary to any person other than defendant’s testator may not recover on the bonds, the complaint should be dismissed.</p>

<p>Supplementary proceedings — when motion to dismiss granted — theatres — executions — Code Civ. Pro. § 2458 (t).</p> <p>A theatre in the city of New York at which a judgment debtor was playing an engagement as an actor, at the time of the institution of proceedings supplementary to an execution issued upon the judgment recovered against him, is not “ a place for the regular transaction of business in person ” in the county of New York, within the meaning of section 2458(1) of the Code of Civil Procedure, it appearing that he transacted no business at the theatre during.his engagement there, and that when not on the stage he was in his dressing-room changing for the next act; and his motion to dismiss the proceedings will be granted.</p>

<p>Trial — in foreclosure action — pleading — actions.</p> <p>Motions and orders — when motion to frame issues denied — default — General Rules of Practice, rule 31.</p> <p>Though the answer in a foreclosure action pleads counterclaims which if defendant had brought actions thereon would have been triable as matter of right by a jury, it is not entitled to such a trial in the foreclosure action.</p> <p>Where defendant’s motion to frame for a jury trial the issues raised by its counterclaim and the reply thereto was not made within twenty days after the joinder of issue, as required by rule 31 of the General Rules of Practice, and sufficient reason is not shown for overlooking the default, the motion will be denied in the discretion of the court.</p>

<p>Certiorari — writ of, to review alleged determination of superintendent of insurance — New York Fire Insurance Exchange — Insurance Law, § Í41.</p> <p>An application for a writ of certiorari to review an alleged determination of the superintendent of insurance of the state for an order for the removal of an alleged unfair discrimination in fire insurance rates consisting in the fixing by the New York Fire Insurance Exchange of a much lower rate on unmanufactured than on manufactured furs in storage warehouses equipped with sprinklers to extinguish fires and the refusal of that organization to fix in a similar way a lower rate for unmanufactured than for manufactured furs in storage warehouses not so equipped, denied, but without prejudice to a renewal of the application for a hearing at which the New York Fire Insurance Exchange can be heard, the superintendent of insurance basing his refusal to interfere, and to issue the order asked for, upon the language of section 141 of the Insurance Law.</p>

<p>Judgments — when courts of this state will not recognize a personal liability arising from foreign judgment — jurisdiction — actions — service of process — negotiable instruments.</p> <p>The courts of this state will not recognize a personal liability arising from a foreign judgment obtained upon service of process beyond the territorial jurisdiction of the foreign state.</p> <p>Where, in an action brought upon a judgment obtained in England against defendant as acceptor of a bill of exchange payable in that country, it appears that the service of process in the English action was effected upon the defendant personally in the state of New York but that he did not appear or defend, he is entitled to judgment.</p>

<p>Equity — power of, to relieve — mortgages — default — election.</p> <p>Foreclosure — of purchase money mortgage — default in payment of interest — evidence — judgments — election.</p> <p>Equity has power to relieve a mortgagor from the operation of a clause in the mortgage giving the mortgagee the right to elect that the whole amount of principal and interest shall be due and payable in case of default in payment of interest.</p> <p>Where, in an action to foreclose a purchase money mortgage which provided that in case of default in the payment of interest for ten days the mortgagee might elect to declare the whole principal due, it is apparent from the evidence that the default in the payment of the first interest, for failure to pay which the action was brought, was not occasioned by the wilful neglect of defendants, judgment will be directed relieving them from the consequences of their default upon payment of all arrearages of interest, with interest thereon, within five days after.entry of judgment.</p>

<p>Mortgages — foreclosure — when mortgagor not relieved from liability for deficiency — contracts — judgments.</p> <p>In an action to foreclose a mortgage a mortgagor who has subsequently transferred the property is not relieved from liability for a deficiency judgment where there is no agreement in writing between his grantee and the mortgagee extending the payment of the mortgage or changing the rate of interest.</p>

<p>Motion to amend complaint.</p>

<p>Constitutional law — statutes — schools — jurisdiction — Education Law — town school hoards — United States Constitution, Fourteenth Amendment — New York Constitution, art. IX, § i; art. X, § ,</p> <p>Under the constitutional provision (State Const, art. IX, 5 1) that the legislature shall provide “for the maintenance and support of a system of free common schools, wherein all the children of this State may be educated” the- legislature has power to provide such a system or systems as will meet the needs of each locality, and its classification is not subject to judicial review; but it is not required to provide the same system or organization for each locality in the state.</p> <p>The statute (Education Law, art. XI-A, §§ 330-365, added by chapter 328 of the Laws of 1917), the purpose of which is to reorganize the rural school districts into a town school system and provide for the creation of a town board of education in each town, with certain exceptions, and similar boards in certain union free school districts, the qualification of members of such boards, appointment of officers, their powers and duties etc., is constitutional and valid.</p> <p>Section 331 of the Education Law, which establishes a town board of education in each town of the state, having jurisdiction over all the schools of the town as thereinafter provided, "except in union free school districts having a population of fifteen hundred or more or employing fifteen teachers or more at the time this act takes effect, and the school districts in the several towns of a county which adjoins a city having a population of one million or more and in which there are only two district superintendents,” does not violate the Fourteenth Amendment of the United States Constitution in that it unlawfully discriminates against the citizens of Westchester county and denies to them the equal protection of the laws, because the exception can only apply to and affect Nassau county.</p> <p>The provision of section 352 of the Education Law for an apportionment and distribution, by the old trustees of the school districts subject to the statute, of the funds remaining in their hands after closing the financial affairs of the districts, except state moneys, among the taxpayers of the district, violates no constitutional provision, such transfer being simply from one public authority to another for convenience of administration.</p> <p>The provision of section 353 of the Education Law which makes the bonded indebtedness for the several school districts affected a charge against property subject to tax for the maintenance of the schools of the town, and provides for an appraisal of school property, a credit to each district of its value after deducting the bonded indebtedness and an apportionment and distribution of the amount credited to and among the owners or possessors of taxable property in the district in the ratio of their several assessments, does not violate any constitutional inhibition, the purpose of the statute being merely to equalize the burden of the new school system upon all the taxpayers of the town.</p> <p>The word “ election ” in section 354 of the Education Law, as well as the method prescribed for such election, is not an “ election ” within the meaning of section 2 of article X of the State Constitution which provides the method by which certain county, city, town and village officers shall be selected, etc., but is simply the equivalent of an appointment by the boards of education of the town jointly assembled for that purpose and said section 354 will not be held unconstitutional merely because the legislature made use of the word “ election ” for what is plainly nothing but an appointment within the meaning of the Constitution.</p>

<p>Election Law — amendment of section 513—board of elections — statutes — disposition by secretary of state of official war ballots — Laws 1917, chap. 815, § 5.</p> <p>Mandamus — application for peremptory writ denied — to compel secretary of state to transmit war ballots.</p> <p>The statute (Laws of 1917, chap. 815, § 5), amending section 513 of the Election Law with respect to the disposition by the secretary of state of the official war ballots in his custody which have been voted in the recent election by the soldiers and sailors in the United States service in the present war, being silent as to when the secretary shall transmit said ballots to the boards of elections, leaves him with a wide discretion as to when he shall make such transmission, provided he transmit the ballots in time to have them properly canvassed.</p> <p>Where, upon an application for a writ of peremptory mandamus to compel the secretary of state to forthwith transmit to the various counties in the city of New York the official war ballots above mentioned, it appears that all of such ballots have not yet been received by him and that it is his purpose to transmit all such ballots as soon as he can, not later than December 7, 1917, and it also appears that he has voluntarily furnished to the hoard of elections in New York city an unofficial tabulated statement containing all the information indorsed upon the envelopes containing such ballots, and it is not shown that he has omitted to discharge any duty imposed upon him by law in respect to them, the application will be denied.</p>

<p>Application for peremptory writ of mandamus.</p>

<p>Liquor Tax Law, §§ 30-P, 37(1)—violation of — indictments — misdemeanor— fines — “Bone Dry Law” — Laws of 1917, chaps. 623, •' 814.</p> <p>One charged with a violation of section 30-P of the Liquor Tax Law, as amended by the "Bone Dry Law” (Laws of 1917, chaps. 623, 814), must be prosecuted by indictment and trial in a court of record as provided by section 37(1) of the Liquor Tax Law, though upon conviction he is punishable under section 36(2) of the Liquor Tax Law by1 a fine of not more than $500, or by imprisonment in a county jail or penitentiary for a. term of not more than one year, or by both such fine and imprisonment.</p> <p>A Police Court, being a Court of Special Sessions, has no jurisdiction to render a judgment of conviction in such a case though defendant pleads guilty to the charge, and he must be discharged on habeas corpus.</p>

<p>Indictment — when motion to dismiss, denied — evidence — motions and orders — divorce — depositions — criminal law.</p> <p>Where, upon a motion made after the inspection of the grand jury minutes to dismiss an indictment charging that defendant conspired with certain persons, naming them, to prevent the due course of law and justice and to give and cause to be given false testimony in a divorce action then pending in the courts of a sister state, and the indictment sets forth certain overt acts alleged to have been committed to effect the object of the conspiracy, and the evidence though failing to disclose concerted action between all the parties named does show concerted action between defendant and one or more of .the other parties, the motion will be denied.</p> <p>The act of one of said persons in making a false deposition before a commissioner appointed by the court in which the divorce action was pending not being the ultimate object of the conspiracy, there was no merger thereof in the felony committed by the one making the false deposition.</p>

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

Appeal by plaintiff from a judgment of the City Court of the City of New York, dismissing the complaint at the close of plaintiff’s case.

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

<p>Workmen’s Compensation Law, §§ ii, 50 — action for personal injuries — evidence — negligence — statutes.</p> <p>Under section 11 of the Workmen’s Compensation Law the remedy therein afforded to an employee against his employer for personal injuries received in the course of his employment is exclusive, and in an action by an employee who, while at work in a cellar in defendant’s factory, was bitten by a dog kept there by the engineer for a year or more, presumably with the permission of the defendant, the burden is on plaintiff to show that the statute did not apply by reason of defendant’s failure to secure the payment of compensation as required by the statute; arid where no proof is offered to sustain the allegation of the complaint of such failure on the part of defendant a judgment in plaintiff’s favor will be reversed and a new trial ordered, as the language of section 50 of said statute, which is mandatory on every employer in this respect, gives rise to the presumption that the defendant had complied with such duty.</p> <p>The plaintiff was engaged in the performance of the duties of his employment at the time he was injured, and the presence of the dog with defendant’s implied knowledge and consent was one of the physical conditions of the plant under which defendant required plaintiff to perform his duties.</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 by a judge without a jury.

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

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

<p>Attorneys — action for legal services — trial — evidence — when motion for compulsory reference granted.</p> <p>Where, in an action by attorneys to recover for legal services some of which were rendered not for the defendant corporation but for individuals connected therewith, there was presented a large number of subjects of employment that had no relation to each other nor apparent connection except the fact that they were rendered by plaintiffs for defendant, and it is probable that it would be impossible for the jury to keep in mind the evidence in regard to each, of the many items of the claim and to give that evidence its proper weight and application, a motion for a compulsory reference of the issues will be granted.</p>

<p>Motion by the defendant Emilio Lopez for a bill of particulars.</p>

<p>Appeal from a judgment of conviction of the Police Court of city of Troy, rendered July 11,1917.</p>

<p>Decedents’ estates — negotiable instruments — gifts — wills — insurance (life).</p> <p>Where it is clear that a promissory note given without a valuable or sufficient consideration was intended by the maker to operate at his death as a gift to the payee, his daughter, of the sum of money therein mentioned, the note is not a .valid obligation against his estate, nor does it amount to or effect a valid gift of the money.</p> <p>Where, however, a provision of the maker’s will mentions the note and directs that the proceeds of certain insurance be paid thereon, to the extent of the sum realized upon the insurance policies, the payee is entitled to recover as legatee such amount over and beyond such other provisions as are made for her by the will.</p>

<p>Equity — action to compel removal of substantial structure encroaching about twelve feet on plaintiff’s land — ejectment not adequate relief — damages — rental value of land considered as vacant property.</p>

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

Application under section 56 of the Election Law to review the action of the inspectors of election of the town of Edinburgh, Saratoga county.

<p>Appeal from a judgment rendered by á justice of the peace in favor of plaintiff.</p>

<p>Action to determine a controversy.</p>

<p>Demurrer to complaint.</p>

<p>Action to recover upon a check.</p>