Volume 102 — New York Miscellaneous Reports

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

<p>Negligence — allegations of — where the work makes the place — master and servant — actions — evidence — motions and orders.</p> <p>Where an employee engaged in tunnel excavation is injured by an explosion the prosecution of the work makes the place, and the rule that it is the employer’s duty to furnish a safe place to work does not obtain.</p> <p>Where it appears that the explosion may have been caused by the negligence of a fellow servant the doctrine of res ipsa loquitur does not apply.</p> <p>Where in a common law action for negligence plaintiff, employed by defendant in the excavation of an underground railroad in the city of New York as a laborer in cleaning-up work after the blast had been exploded, testified that he was directed by the foreman to break up a large rock in which apparently a hole had been drilled; that he objected; that the foreman then extracted some dynamite from the hole in the rock, and on further objection being made took the hammer and struck the rock and then told plaintiff to break it and at the third blow there was a loud explosion and plaintiff became unconscious; and the only allegation of negligence in the complaint is that when plaintiff struck said rock “ a charge of dynamite within said rock used for blasting and negligently and carelessly theretofore left unexploded, all of which was known to defendant, did explode,” and there was no evidence as to how or by whose fault, if any, the dynamite was put in the rock or failed to explode, defendant’s motion to dismiss the complaint, decision upon which was reserved and the case sent to the jury which rendered a verdict in favor of plaintiff, will be granted.</p>

<p>Depositions— motion to suppress, when granted — examination of expert accountant — actions — partnership — witness — accounting — evidence.</p> <p>Upon motion to suppress the deposition of an expert accountant as a witness for plaintiff in an action to establish a copartnership, which has been decreed, and for an accounting, counsel for defendants, after questioning the witness, without the aid of an expert, as to the general plan and scope of his work as accountant, stated that he had cross-examined the witness as well as he could and to the full extent .of his ability and objected to any further postponement of the hearing except for the purpose of reducing it to writing so that thé witness could sign it and insisted that the examination be closed then. The hearing was adjourned against the objection of counsel for several days at which time the witness signed the testimony, which the referee certified, and on the same day the witness, who was a British subject, went to Europe, where he joined the colors and was tilled in action. Held, on a consideration of all the facts and circumstances, justice required a determination that the deprivation of a further, adequate and proper cross-examination of the witness was not because of the fault or waiver or negligence on the part of defendants or their attorneys and that their motion to suppress the deposition of the witness should be granted.</p>

<p>Contracts — what constitutes a part of — building — specific performance— evidence — provisions of building code — Public Health Law — city of Albany — verdict.</p> <p>The provisions of the building code and Public Health Law of the city of Albany, N. Y., are a part of every contract for the construction of a building within the city, and neither party to such a contract can waive any of such provisions and a contractor assuming to build in accordance therewith must in that regard specifically perform.</p> <p>The contractor cannot be said to have executed the work in accordance with such provisions of law because some official charged with the responsibility sees fit to give a certificate to the effect that the contract met the requirements of the statute, for the reason that whether there was a failure or compliance with the law governing such matters depends upon the fact, not upon somebody’s certificate.</p> <p>Where, upon the trial of an action to recover a balance alleged to be due under a building contract, the question of fact to be submitted to the jury is whether there has been a substantial performance of the contract, and, assuming that the jury has been properly instructed that under the law a contractor is not now held to a complete and specific performance of the contract in each and every detail, the court is in duty bound to entertain a motion to set aside the verdict in plaintiff’s favor as against the weight of evidence.</p> <p>An order granted setting aside the verdict herein on the ground that on the question of substantial performance it was not sustained by the weight of evidence.</p>

<p>Demurrer to defense.</p>

<p>Condemnation Law — an award is “personal property” not “land" — when state may not claim award on ground of escheat.</p> <p>An award made to the owner of property condemned is in effect a judgment for money which is personalty, and he has an equitable lien on the land condemned as security for the payment of the award.</p> <p>In an action brought by such an owner against the railroad company which instituted the condemnation proceedings, and its receivers, the judgment therein entered declared such equitable lien and directed the same to be enforced by a sale of the property to satisfy it. Meld, that assuming that the plaintiff in said action died intestate as to the real property condemned there was no escheat to the state, as the award made was to be deemed personal property and not land.</p> <p>• That a motion to confirm the report of a referee appointed, in a condemnation proceeding instituted against the executors of the former owner of the property who had purchased it for themselves and not for the estate, to take the proof in regard to the right, title and claim of various defendants to the award, in favor of the state, upon the theory that the former owner of the property condemned, from which the fund arose, died intestate as- to the property, without heirs capable of taking by descent, and for that reason the property escheated to the state and that the award should go to it, will be denied.</p>

<p>Disorderly conduct — when conviction for, justified — evidence — breach of the peace — criminal law.</p> <p>Where defendants, upon being directed by a police officer to discontinue driving their ash truck which was then and there in an unsafe condition and a menace to the safety of other vehicles on the highway and told to stand still until the truck could be fixed and safely moved, said to the officer “ Where the hell do you get off to tell us what to do * * * we’ll do as we like, we don’t care what you say,” the evidence justifies a conviction for disorderly conduct, as it tends to a breach of the peace.</p>

<p>Transfer tax — meaning of “ doing business ” — corporations — domicile — evidence — Tax Law, § 220(2) as amended by Laws of 1916, chap. 323.</p> <p>A transfer tax proceeding being in the nature of an inquisition at the instance of the state, the common law rules of evidence have no strict application, and while the state should be liberally treated the proceeding should not be allowed to harass the citizen.</p> <p>Where, it having been determined that a decedent at the time of her death was not domiciled in this state, the transfer tax proceeding was remitted for the purpose of appraising her estate as a non-resident, and it appears that for the two years immediately preceding her death she had no office in this state for the transaction of business, that she did not solicit nor transact business with the public or hold herself out as a lender of money, but that her business activities were confined to receiving interest and dividends on her investments and investing in securities so much of her income as was not required for her living expenses, she was not “ doing business ” in this state within the meaning of section 220(2) of the Tax Daw, as amended by chapter 323 of the Daws of 1916.</p> <p>Evidence considered and held that any business done by a domestic corporation in which decedent had a controlling interest at the time of her death was not her individual business and did not constitute the “ doing of business ” by her in this state within the meaning of the transfer tax statute.</p>

Appeal by plaintiff from a judgment in favor of defendant on its counterclaim, entered upon the verdict of a jury in the City Court of the City of New York..

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 the defendant.

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

Appeal by defendant from an order of the Municipal Court of the city of New York, borough of Brooklyn, fourth district, bearing date October 22, 1917, denying defendant’s motion to vacate an order made by a justice of said court, and dated September 13, 1917, directing the examination of defendant as an adverse party before trial.

<p>Negotiable instruments — action on promissory note — corporations — bills, notes and checks—plaintiff not entitled to recover upon original or renewal note — appeal.</p> <p>A corporation made its promissory note for $750 to the order of its president which he indorsed as an individual and dis-. counted at the plaintiff bank where he had a personal account,, and at maturity of the note he gave plaintiff his personal check for $50 together with a similar note for $700 made by the corporation and indorsed by him, the first note being thereupon surrendered after being stamped “paid” by plaintiff. The $700 note at maturity was stamped “paid” and surrendered by plaintiff which in place of it received a third note of similar tenor for $700 and when it matured the payee gave his personal check for $700 drawn to plaintiff’s order and its president, who authorized the acceptance thereof in payment of said note which was thereupon stamped “paid” and surrendered to plaintiff, charged the $700 check which was stamped “ paid ” against the account of the drawer deducting the amount thereof from his account on the books of the bank. In an action on the original note, in which it was sought to hold the maker liable, the plaintiff contended that the $700 check though charged against the drawer’s account was never paid because a certain check for $925 deposited in his personal account three days before the maturity of the note was never collected and was, therefore, erroneously credited to his account, and that plaintiff erred in accepting the same in payment for and surrendering the third note and in charging the payee’s personal account with the check for $700 and marking it “ paid.” Held, that such contention was untenable, that plaintiff was not entitled to recover upon the original note nor upon either of the two renewal’notes; that its remedy was solely against its depositor upon the unpaid $700 check.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, third district, rendered February 4,1916, in favor of the plaintiff for $170.25 damages and costs, after a trial by the court without a jury.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, first district, rendered September 22, 1917, in favor of the plaintiff for $246.75 damages and costs, after a trial by the court without a jury.

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, first district, rendered July 5,1917, in favor of plaintiff for $824.06 damages and costs, after a trial by the court without a jury.

Defendant appeals from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, fifth district, entered upon a verdict of a jury, and from an order denying its motion for a new trial.

Tenant appeals from a final order and from an order denying her motion for a new trial in a proceeding to recover the possession of property for the nonpayment of rent.

<p>Municipal Court of city of New York — jurisdiction of — marshal of, required to file bond — actions — Municipal Court Code, § 146.</p> <p>Under section 146 of the Municipal Court Code a marshal is required to file a bond in the sum of $3,000 and the Municipal Court of the city of New York has not jurisdiction of an action against a surety on such a bond.</p> <p>Benedict, J., dissents.</p>

<p>Negligence—master and servant — evidence—who entitled to maintain action for damages — motion to set aside verdict, when denied.</p> <p>Workmen’s Compensation Law, as amended by Laws of 1916, chap. 622 — benefits to new class of employees — statutes.</p> <p>Plaintiff, a guard in the operation of cars on defendant’s railroad, on the arrival of his train at a certain station where his duties ceased, remained on the train on its return trip so as to keep an appointment with his dentist, and was caught in the wreckage of a collision between his train and another and was severely burned. There was no evidence that defendant permitted its employees when off duty to ride in a passenger car in uniform or that when so riding such employees were riding at their own risk; nor was evidence offered to show that employees so riding released defendant from liability by reason of its negligence, or that an employee when so riding was to be treated differently than any other citizen. Held, that plaintiff was as matter of law a passenger and entitled to maintain an action for damages and that a motion to set aside a verdict in his favor will be denied.</p> <p>That while the amendment (Laws of 1916, chap. 622) to the Workmen’s Compensation Act adds a new class of employees who theretofore had been excluded from its benefits it does not provide that a person not in the service of the employer when injured is an employee, and, therefore, plaintiff was not entitled to any relief under that statute.</p>

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

<p>Election Law, as amended by Laws of 1917, chapter 815 — voting by soldiers and sailors — who aré sole judges of qualifications of voters — elections.</p> <p>Under chapter 815 of the Laws of 1917, amending the Election Law in relation to voting by soldiers and sailors and the canvass of war ballots, the inspectors of election are the sole judges of the qualifications of a voter, and!, where a challenge is made before an envelope is opened and the inspectors overrule the challenge and open the ballot, their decision that the voter is qualified to vote in that election district is final.</p>

<p>Automobiles — violation of motor speed ordinance of city of New York — when conviction for violation reversed.</p> <p>Where the owner of an automobile, at a time when it was being operated by his chauffeur at a rate of speed in excess of that prescribed by the motor speed ordinance of the city of New York, was in the rear seat of the car with his wife engaged in conversation and unaware of any violation of law on the part of his chauffeur, the circumstances created a reasonable doubt as to his guilt of a violation of said ordinance and his conviction therefor will be reversed. ‘</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, in favor of the plaintiff, assignee of Dr. F. Glynn Young, a physician, for professional services rendered to the defendant. Trial before judge and a jury and the jury assessed the damages under the direction of the court.

<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.</p>

<p>Supplementary proceedings — motions and orders — wills — executors and administrators — Surrogate’s Court — Code Civ. Pro. § 2441.</p> <p>An order in proceedings supplementary to execution may be granted for the examination of the executors of the will of the. mother of the judgment debtor whose interest in her personal estate is of the value of several thousand dollars, and a motion to vacate such an order on the ground that section 2441 of the Code of Civil Procedure was not intended to apply to executors and administrators, but that the Code provisions relating to the practice in Surrogate’s Court are exclusive, will be denied.</p>

<p>Action in equity for an accounting.</p>

<p>Motion to dismiss complaint on the evidence at the trial.</p>

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

<p>Application for a writ of certiorari.</p>

<p>Decedent Estate Law — accounting — insurance (life) — next of kin — public administrators.</p> <p>In an accounting proceeding it appeared that the decedent left no wife, no children, no representatives of a child, no next of kin and no children of his deceased wife, him surviving, and that he died possessed of personal property only including two policies of insurance in which his wife was stated to have been the beneficiary, and a bank account in her name in trust for decedent. His wife who predeceased him left a sister, two brothers, nephews and nieces. In denying their claim that they should be deemed the decedent’s next of kin for purposes of distribution, Held:</p> <p>That, under the terms of the policies of insurance, the interest of the wife was merely a contingent interest which would vest upon the prior death of the decedent, provided he made no change in the beneficiary; but as the wife died before the deceased she never became vested with the right to the death benefit and hence the decedent did not receive it from her upon her death;</p> <p>That the form of a deposit in the bank created a tentative trust revocable at will by the decedent’s wife at any time before her death; that as she predeceased the decedent the trust became irrevocable and the moneys evidenced by the deposit vested in the deceased and were not received by him “by will or by virtue of the laws relating to the distribution of the personal property of the deceased person.”</p>

<p>Action to recover the face value of a bond, together with interest.</p>

Appeal by defendant from an order of the Municipal Court of the city of New York, borough of Manhattan, ninth district, denying a motion to vacate an order for the examination of the defendant before trial.

<p>Appeal by the defendants from an order of the • Municipal Court of the city of New York, borough of Manhattan, fifth district, denying a motion to vacate a judgment.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, for $849 and costs.

<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.</p>

Appeal by the defendants from an order of the Municipal Court of the city of New York, borough of Manhattan, first district, setting aside, upon reargument, a verdict of fifty dollars in favor of the plaintiff and granting a new trial.

Appeal by the defendant from, a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, entered in favor of the plaintiff and from an order denying defendant’s motion for a new trial.

<p>Action for negligence.</p>

<p>Specific performance — when action to compel will not lie — contracts — adoption — marriage.</p> <p>An action to compel the specific performance of an, agreement to adopt children born of a marriage between the parties while defendant had a wife living will not lie.</p>

<p>Action to foreclose a mortgage.</p>

<p>Action in equity to declare a lien upon real estate.</p>

<p>Jurisdiction — accounting by testamentary trustees — Surrogate’s Court — Supreme Court.</p> <p>Assignments — negotiable instruments — mortgages — legacy — banks — equity — jurisdiction — evidence — testamentary trustees — accounting.</p> <p>Though in proceedings for an accounting of testamentary trustees the Supreme Court has concurrent jurisdiction with the Surrogate’s Court it will not ordinarily take jurisdiction thereof where the same questions are involved in prior proceedings in the 'Surrogate’s Court between the same parties.</p> <p>Where, in an action brought to have adjudged void two certain promissory notes made by one of the defendants to the order of plaintiff and discounted by the defendant bank for the maker; to have adjudged void for want of consideration an assignment by plaintiff to said bank of a certain legacy as collateral security for the notes; to have an assignment of an interest in a certain mortgage delivered by the defendant testamentary trustee to plaintiff in part payment of such legacy, and afterwards returned by plaintiff to such trustee, delivered back to plaintiff, and also to have the rights and priorities of the several parties as assignees of another legacy under the same will adjudicated and determined, the defendant trustee seeks equitable relief against the plaintiff and also an affirmative judgment for moneys paid to him on account of such legacy in disregard of the assignment thereof to the bank and inadvertently overlooked by the trustee upon the judicial settlement of his trust, and it is doubtful whether the Surrogate’s Court has jurisdiction to determine some of the questions presented by the answer of the defendant trustee, this court should entertain the action and proceed to a determination of the questions involved.</p> <p>The notes dated July 1, 1912, were payable on demand after date and the maker and the plaintiff were father and son, both of whom were lawyers. On December 23, 1913, no payment having been made on the notes, the bank requested additional security of the maker and the indorser, and plaintiff, instead of taking the position that there had been unreasonable delay in demanding payment and, therefore, he was discharged, acceded to such request and assigned the legacy to the bank “ as collateral and continuing security ” for the payment of the notes with interest. Held, that by the assignment, which is held valid, plaintiff recognized his then existing liability as indorser and it was fair to assume that the circumstances were such that the parties believed that the notes were to ran for some time and that the security was to continue so long as the notes remained unpaid.</p> <p>That the defendant trustee upon the evidence was entitled to the relief sought against plaintiff for the cancellation of the interest in the mortgage inadvertently assigned to plaintiff.</p>

<p>Motion by petitioner to permit certain electors of the town to vote upon the local option questions.</p>

<p>Motion" by plaintiff for an order overruling defendants’ answer as frivolous and for judgment on the pleadings.</p>

<p>Attachment—warrant of — motions and orders — contempt — default — sheriffs — Code Civ. Pro. §§ 655, 677 — Judiciary Law, § 773.</p> <p>Where certain bonds held by a trust company as collateral security for two notes owned by it and made by defendant were levied upon under a warrant of attachment issued against him, and the trust company out of the proceeds of a sale of the bonds not only paid itself the amount of said notes but also took the same course with regard to two other notes payable to defenclant and owned by the trust company, a motion to compel it to pay over to the sheriff the amount of the last two notes or, in default thereof, to be punished for a contempt of court, will be denied.</p> <p>In view of the provisions of sections 655 and 677 of the Code of Civil Procedure and section 773 of the Judiciary Law an action is maintainable to recover damages for the alleged loss or injury occasioned by the payment of the last two notes.</p>

Application by the relator for a peremptory writ of mandamus to compel the respondent to make connection with its gas mains.

<p>Condemnation proceedings — lands acquired by commissioners of Palisades Interstate Park by purchase cannot be thereafter acquired by — rights of petitioner — dismissal of proceeding.</p> <p>Lands acquired by the commissioners of the Palisades Interstate Park by purchase or otherwise cannot thereafter be acquired in a condemnation proceeding instituted by a water power and service company.</p> <p>With respect to such of the lands described in the petition and sought to be acquired by said company as were not acquired by said commissioners the petitioner has a prior right over them by virtue of the present proceeding commenced ten months prior to that of said commissioners.</p> <p>Where it clearly appears that the bulk or greater part of the land and sources of water supply upon which the water power and service company relies for the execution of its plans were purchased by the commissioners of the Palisades Park before the commencement of the present proceeding and such right of purchase has been confirmed by a decision of the Appellate Division, the present proceeding will be dismissed.</p>

<p>A proceeding was started in this court by the beneficiaries of the trust created by the will of the decedent to compel an accounting by the executors. The executors filed an account, both as executors and as testamentary trustees. Objections were filed to the account, a trial was had, a decision made, and appeal was taken to the Appellate Division of the Supreme Court. Matter of McDowell, 178 App. Div. 243. The Appellate Division decided that the account had been settled in certain respects and that there had been a mistrial in certain other respects before the surrogate and a pro forma order of reversal was entered and the matter sent back to the surrogate for further hearing for the purpose of giving the accounting parties the right to defend investments made by them by invoking the discretion which the will placed with them as trustees. The matter was regularly brought on by the petition of the beneficiaries of the trust, on due notice given to the accounting parties. Practically no further evidence was offered in the proceeding as sent back by the Appellate Division, except that some proof was filed as to the value of certain attorneys’ services rendered. A supplemental account was filed by the executors, as such, to which objections were filed by John G. McDowell and Clara B. McDowell.</p> <p>The trustees also filed an account in which all three joined, together with a petition asking for its settlement. A citation was thereupon duly issued to all parties interested in the trust estate. On the return of the citation the beneficiaries of the residuary trust, namely, John G. McDowell and Clara B. McDowell, appeared and filed objections to the account, and a hearing was thereupon duly had.</p> <p>None of the remaindermen have appeared and filed objections except Clara B. McDowell.</p>

<p>Proceeding upon the account of a surviving trustee.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, second district, rendered February 27, 1917, in favor of the plaintiff.</p>

<p>Contracts — right to enforce — breach of — alien enemy — actions — courts — when motion to dismiss complaint denied.</p> <p>Subjects of an enemy nation, resident, in this country, are entitled to invoke the process of our courts so long as they are guilty of no act inconsistent with the temporary allegiance they owe to this government.</p> <p>Although the proclamation of the president, April 6, 1917, is an administrative measure it has the force of a statute, and a subject of the Kingdom of Prussia by reason of treaty obligations has an absolute right to pursue her occupation as an opera singer and to claim the same consideration as that accorded to American citizens.</p> <p>Her right to contract as a singer carries with it the right to enforce her contract and a motion to dismiss the complaint in an action brought by her to recover for a breach of contract to sing will be denied.</p>

Motion by the petitioners, Caroline Hurry, Edward Temple Hurry and William A. Braekenridge, as trustees under the last will and testament of William Hurry, deceased: That this court determine and adjudge whether under the terms and provisions of the will of William Hurry, deceased, and under the intention of the testator to be derived therefrom and under all the facts and circumstances, it is the duty of said trustees to sell the said Sixth avenue property for the best price…

<p>Pleading — allegations contained in complaint — demurrer — actions — insurance (automobile) — appeal — automobiles — amendment — answer—counterclaim.</p> <p>An open policy issued by defendant insuring plaintiff’s automobile against loss or damage in a certain amount on any single occasion by theft, etc., by any person or persons other than those in the employment, service or household of the insured, was delivered in blank without describing the automobile or stating the amount of insurance, rate, premium or duration, except that it was to be from one certain date to another, but the policy did provide that the insurance was to be in such sums and for such periods of time as might be shown by the certificate issued in connection with the policy. There were delivered with the policy two certificates or binding slips, duly countersigned, stating the same rate, premium and amount and duration of insurance, one to run from August 30, 1913, to September 30, 1913, the other from September 30, 1913, to October 30, 1913. The only question litigated upon the trial of an action based upon the second certificate was whether the automobile was stolen, though defendant made a motion to dismiss the complaint on the ground that it did not state a cause of action. This motion was denied and, upon an appeal from the judgment entered in favor of plaintiff on a verdict, the real ground of the motion to dismiss the complaint was stated. The Court of Appeals reversed the unanimous affirmance of the judgment on the ground that the alleged theft did not take place during the life of the certificate as alleged in the complaint and granted a new trial with leave to amend the complaint. The Special Term allowed the amendment upon the theory that as it alleged a cause of action upon the same policy of insurance, based upon the first certificate continuing the insurance in force at the time of the alleged thpft, it did not bring in a new cause of action. Held, that the error, if any, in allowing the amendment on that theory might be corrected only on appeal from the order granting the amendment and not on the hearing of a demurrer to separate defenses pleaded in the amended answer.</p> <p>That the amended complaint stated a good cause of action.</p> <p>The allegations of facts set forth in the separate defenses considered, and held, that for the purposes of the demurrer they were not insufficient in law and the demurrer should be overruled.</p>

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

<p>Application by the plaintiff to the court for judgment on default.</p>

<p>Application for a writ of prohibition.</p>

<p>Partition — when action Will not lie for — sale of land containing burial plot — easements.</p> <p>An action will not lie for the partition and sale of land containing a burial plot free and clear of the right of burial therein of persons entitled thereto, against their protest.</p>

<p>Jurisdiction — of County Courts to set aside certain transfers of real estate — fraud — receivers — accounting.</p> <p>The County Court has not jurisdiction, even by consent of the parties, of an action to set aside certain transfers of real estate alleged to have been made in fraud of creditors, where the plaintiff asks for the appointment of a receiver and for an accounting of moneys and the judgment sought will not affect all of the defendants in the same way.</p>

<p>Application for 'ancillary letters of administration.</p>

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

<p>Application for a temporary injunction to restrain the defendant for the term of one year from the 26th of January, 1918, from soliciting orders or performing labor in the window cleaning business.</p>

<p>Deeds — what insufficient grounds for setting aside transfer — mortgages — actions — evidence — fraudulent conveyances.</p> <p>Where a man while solvent transfers property to his wife for a valuable consideration without intent to defraud his creditors, and such creditors as he had at the time are paid in full, the fact that some years subsequently he incurred debts and became insolvent is not sufficient ground for setting aside such transfers to his wife as being fraudulent as against subsequent creditors.</p> <p>The plaintiff and W., the two testamentary trustees of N.’s estate, with full knowledge of all parties interested therein, from time to time for many years had borrowed money from the estate giving interest bearing notes for any money they borrowed. Later, in order to pay an indebtedness of $10,000 to the estate on such notes, W. induced his wife to join in a $7,000 mortgage and she paid to him, by assigning to him two mortgages and a note, an amount aggregating $3,204.82, and he conveyed to her certain real estate. After payment of the indebtedness to FT.’s estate with the money raised on the mortgages and note, W. had $20,000 worth of property, including the value of his interest in the income of said estate, and when he died insolvent more than ten years thereafter he had again become indebted to said estate in the sum of $4,100 borrowed money. In an action by plaintiff, as sole surviving trustee, to set aside the conveyances of real estate by W. to his wife, held, that the same were made for a good and valuable consideration, and the evidence failing to establish any fraud or any fraudulent intent on the part of either the grantor or his wife, the grantee, in malting or receiving said transfers, the complaint will be dismissed, with costs.</p>

<p>Liquor Tax Law, § 33 — what deemed a “ liquor ” within meaning of — — rulings of United States internal revenue department — actions — judgments — state commissioner of excise.</p> <p>Under the rulings of the United States internal revenue department the sale at retail of the beverage known as “Weiss Beer” requires the payment of a retail liquor dealer’s or retail malt dealer’s special United States internal revenue tax.</p> <p>Such beverage because of its high alcoholic content indicated by chemical analysis must be deemed a “liquor” within the meaning of the Liquor Tax Law, the sale of which by one who has not paid the tax prescribed by law and obtained a liquor tax certificate is forbidden.</p> <p>Where in such circumstances the liquor is kept stored or deposited in a town in which traffic in liquor except by pharmacists on a physician’s certificate is forbidden “for the purpose of unlawful sale or distribution within this state” it is subject to confiscation, and in an action instituted by the state commissioner of excise under section 33 of the Liquor Tax Law plaintiff is entitled to judgment forfeiting to the state said liquor which was seized pursuant to a warrant issued under said section 33 of the Liquor Tax Law.</p>

<p>Transfer tax — who not subject to — trusts — Surrogate’s Court — life tenants—wills.</p> <p>Decedent, who died in 1899, gave one-half of his estate in trust for the benefit of a daughter during her life, the remainder to be divided between his son and another daughter, or their issue. The son died before the life tenant leaving him surviving three children and under a decree of the Surrogate’s Court one-half of the remainder after the life estate was paid to said children. Held, that the tax on this transfer having been assessed and paid it was not subject to a further tax even though the persons who were the ultimate beneficiaries were not those mentioned in the taxing order.</p>

<p>Insurance — against loss by burglary, theft, etc.— fire in apartment below contributing to loss — defendant not liable.</p> <p>Where by a rider attached to a policy of insurance against burglary, theft or larceny it was agreed that the insurer should not be liable for any loss from or contributed to by fire, water, etc., and in an action on the policy to recover for the loss of certain jewelry and silverware, a part of which was in a box in a locked dresser drawer in plaintiff’s apartment, it was found as a fact that a fire which broke out and was confined to the floor below plaintiff’s apartment contributed to the loss, there can be no recovery and defendant is entitled to judgment.</p>

<p>Mechanic’s lien — foreclosure of — actions — negotiable instruments— contracts — liens — judgments.</p> <p>In an action to foreclose a mechanic’s lien it appeared that the general contractor on October 16, 1916, when there was nothing due and owing to the subcontractor, gave him its promissory note for $6,000, which he discounted at a bank, and on December 16, 1916, when the note matured, it was paid by the maker. On November 8, 1916, the contractor paid the subcontractor $5,500 in cash on account of his contract which sum, plus the amount of the note, would, if the note constituted payment, have paid the subcontractor all that was due him on November 1, 1916, pursuant to his contract. A week after the cash payment the subcontractor became a voluntary bankrupt and on the same day plaintiff filed his lien and other lienors filed their liens two days later. The work under the subcontract was completed at the expense of the general contractor. Held, that in the circumstances the giving of the note was in the nature of an accommodation and until actually paid there was still an outstanding indebtedness of the general contractor to its subcontractor which supported the liens in suit.</p> <p>That, the subcontractor after his indorsement of the note at the bank was at least contingently liable and his right to file a lien was not affected and his subcontractors had the samé right.</p> <p>That the general contractor when it gave the note took the risk of its being negotiated and in the hands of a third party it could not have priority over the rights of the lienors of the real property.</p> <p>That payment of the note after the liens were filed did not relieve the interested defendants from the claims of the lienors, especially since they had knowledge of the furnishing of the materials and the filing of the liens. Accordingly, held, that plaintiff was entitled to judgment.</p>

Action by plaintiffs as the, committee of an incompetent to set aside certain transfers of real property; also to set aside the transfer of certain shares of the American Encaustic Film Company.

<p>Attachment — when motion to vacate denied — nonresidents — motions and orders.</p> <p>Where, upon a motion to vacate a warrant of attachment, the court finds that the defendant is in fact a nonresident and had only been in this state for a period of about three weeks prior to the issuance of the warrant of attachment, before which time he and his wife had clearly made their permanent residence in Spain for over a year, and it is a fair inference from the facts that he is merely a sojourner in this country, the motion will be denied.</p>

<p>Damages — liability for — measure of — contracts — evidence — trial — verdict.</p> <p>As a result of subway construction the walls of plaintiff’s building on their several fronts settled, in varying degrees, structural cracks developed in walls and roof and the floors were cast out of level. In an action for damages brought against the subway contractor, engineers and architects testified that the building could not be restored to the condition it was in before the construction of the subway was commenced. The subway contractor had agreed with the city of New York that it would be liable for any damage or physical injuries that might in the course of construction be done to any foundation walls, etc., and would do all additional and incidental work that might be necessary for the reconstruction and restoration of all overhead structures which might be disturbed or injured “ to a useful, safe, durable and good condition as existed before construction shall have been begun.” There was evidence as to the cost of building a similar structure but as, under the rule laid down in Hartshorn v. Chaddoch, 135 N". Y. 116, that could not legally be taken as a measure of damages, the depreciation in the market value of the property was taken as such measure. The undisputed testimony of experts, the only evidence available to plaintiff, was to the effect that there was serious depreciation in market value. Held, that to admit depreciation while withholding reasonable compensation would be a denial of justice.</p> <p>That, as the sum fixed by the jury over and above that admitted by the defendant as due for repairs was grossly disproportionate to that established by the weight of evidence, the verdict should be set aside.</p>

<p>Indictment — verdict — trial — evidence — criminal law — jury.</p> <p>The only fact necessarily determined in the defendant’s favor by a verdict of not guilty is that the evidence before the jury was insufficient to prove beyond a reasonable doubt his guilt of the crime charged by the indictment; it is not an acquittal of the crime.</p> <p>A verdict of not guilty rendered upon the trial of an indictment charging the defendant with robbery in the first degree by taking certain personal property from “Alexander Gelber” in the night-time of a certain day is not res adjudicata upon the trial of an indictment charging him with an attempt to commit robbery in the first degree from “ Samuel Gelber ” at the same time and place.</p>

<p>Action to annul a marriage.</p>

<p>Application for citizenship.</p>

<p>Liquor Tax Law, § 30, subd. H — violation of — city of Cohoes — statutes — mandamus.</p> <p>Where it appears that practically all of the forty-six saloons or places in Cohoes, 1ST. Y., are openly and notoriously violating the provisions of subdivision H of section 30 of the Liquor Tax Law (Laws of 1909, chap. 39) with respect to obstructions in their windows and that many of them are violating the provisions of said statute relating to obstructions which prevent a full view of the entire room by every one present, and such violations are stated in great detail in a petition for a writ of peremptory mandamus to compel the commissioner of public safety, the chief of police and his subordinates to enforce the observance of the law, giving dates, names and locations of saloons and the facts in each instance constituting the unlawful obstructions, the application for the writ will be granted.</p>

<p>Counterclaim — when allowed — negotiable instruments — assignments — pleading.</p> <p>In an action upon a promissory note assigned to plaintiff by the payee after maturity and while he was not a holder in due course, a counterclaim in favor of the defendant maker against the payee existing at the time of the assignment must be allowed.</p>

<p>Actions — deeds — fee damages — evidence — injunctions — easements — pleading.</p> <p>The owner of a plot of land which she had laid out with streets and building lots and filed the map thereof in the proper county clerk’s office after making a deed of conveyance to plaintiff of one of the lots, bounding it on one side by a street indicated on said map but never accepted as a public street or worked by any one, conveyed said street and all the lots abutting thereon without any reservation in favor of plaintiff or his lot. By an agreement made by plaintiff, before he had begun the present action to restrain interference with his easements of light, air and access, for a sale of his lot 'to the grantee of the remainder of the original plot, which agreement was not signed or delivered until after the commencement of said action, he lost the right to an injunction and to the fee or permanent damages. The original owner of the whole plot upon being permitted to intervene refused to consent that in case plaintiff was entitled to recover the court might fix the fee damages, as had been agreed between plaintiff and defendant, and asked for a jury, trial, claiming" that it was purely an action at law. Her request was denied, the agreement as to the sale of plaintiff’s lot not then being in evidence. Held, that no evidence being offered as to fee damage the court could not retain the action in equity merely to fix nominal damages; that the complaint should be dismissed and plaintiff left to his remedy at law, if any. ■ -</p>

<p>Demurrer to plaintiff’s complaint.</p>

<p>Election Law — amendments to — duties of town clerk — statutes — when motion for resubmission denied — Liquor Tax Law, § 13.</p> <p>By certain amendments to the Election Law since the enactment of section 13 of the Liquor Tax Law, the duties of the town clerk in connection with biennial town meetings held at the time of a general election have been transferred to or vested in the county board of elections, which in Oneida county is the county clerk.</p> <p>Where, as the result of the submission to the electors of a town in said county of the questions specified in section 13 of the Liquor Tax Law, no liquor will be sold in said town after October 1, 1918, except by a pharmacist on a physician’s prescription, and it appears that the petition of the electors for such submission was properly made out and the certified copy thereof filed with the county clerk, the notices, correct in form and substance, were duly posted and published, and a full and fair vote was recorded under a proceeding which complied with the terms of the statute, the will of the electors will be upheld, though the notice of such submission was signed, given out, posted and published by the town clerk instead of by the county clerk, and a motion for the resubmission of such questions on the ground that they were not properly or legally submitted will be denied.</p>

<p>Motions and orders — corporations — contracts — courts — when motion to vacate garnishee order denied — Code Civ. Pro. § 1391.</p> <p>A New York corporation which has a factory in another state is for all purposes a resident of the state of New York, and though the wages of a judgment debtor employed in said factory are paid there the situs of his contract of employment is in the state of New York; and a motion to vacate a garnishee order, issued under section 1391 of the Code of Civil Procedure, on the ground that money due and to become due to him on said contract is beyond the reach of the courts of the state of New York, will be denied.</p>

<p>Pleading — allegations of — complaint — demurrer — automobiles—contracts — actions — Personal Property Law.</p> <p>Nothing in the Personal Property Law forbids a notice of a sale of property retaken by a conditional vendor being given prior to the expiration of the thirty days for redemption provided the time of sale is fixed subsequently thereto.</p> <p>Where a complaint alleges that defendant sold to plaintiff an automobile upon a conditional contract of sale under which the title was .to remain in the vendor until full payment of the purchase price; that on the 7th day of September, 1917, plaintiff was in default in his payments under said contract and that the defendant in the exercise of his rights seized the machine and on the eleventh day of September served notice and advertised the ear for sale on the 11th day of October, 1917, to satisfy the unpaid balance due on the purchase price, with interest, insurance charges and storage, a demurrer to the complaint for legal insufficiency of the allegations to constitute a cause of action will be sustained, and plaintiff’s motion for judgment on the pleadings will be denied, and the complaint dismissed, with costs of the motion.</p>

<p>Transfer tax—assessment of — deduction from assets — ante-nuptial agreement — dower.</p> <p>Where by an ante-nuptial agreement decedent agreed in lieu and discharge of his wife’s right to dower to give her a certain sum of money during his lifetime or to pay her the same within eighteen months after his death, and payment thereof is not made in his lifetime, the amount of said sum is an indebtedness of his estate to his widow and should be deducted from the assets of the estate in a proceeding to assess a transfer tax.</p>

<p>Application" declaring exempt from taxation the interest of decedent in certain real property.</p>

<p>Proceeding upon the accounting of an executor.</p>

<p>Transfer tax — exemption — executors and administrators — trusts — Tax Law, § 221.</p> <p>Where executors were given a certain sum in trust to pay the income to testator’s sisters during their lives and upon the death of the survivor to give the principal “ as a memorial to me and my wife to such charitable institutions as my executors may select,” the question of exemption under section 221 of the Tax Law cannot be determined until the remainder is paid over, or an agreement is entered into by the trustees binding them to pay it to some corporation; therefore an order imposing a tax at the highest rate which in any contingency would be assessable will be affirmed.</p>

<p>'Proceeding upon the accounts of an administratrix de bonis non.</p>

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

<p>Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of plaintiff, for $232.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, in favor of the plaintiff for the sum of $500 and $38 costs.

<p>Appeal by defendant from a judgment of the Municipal Court of the city of New York in favor of plaintiff for $327.55 and costs.</p>

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

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, dismissing the complaint after a trial by the court without a jury.

Appeal by the defendant from a judgment of the City Court of the city of New York, entered upon the verdict of a jury, in favor of the plaintiff, for the sum of $2,030.63, and from an order denying a motion for a new trial.

<p>Appeal by judgment-creditors from order of the City Court of the city of New York, discharging the judgment-debtor from the custody of the sheriff of the county of New York.</p>

<p>Service — by mail of notice of trial — jurisdiction — Municipal Court of city of New York.</p> <p>Service by mail of a notice of trial in the Municipal Court of the city of Few York must be made eight days before the date fixed for the trial, and the court has not jurisdiction to enter a default judgment against the defendant where ihe notice of trial was so served in less time.</p> <p>Lehman, J., dissented.</p>

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

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, in favor of plaintiff, for $473.70, entered on the verdict of a jury.

Appeal by the defendant from a judgment rendered in the Municipal Court of the city of New York, borough of The Bronx, second district, in favor of the plaintiff for the sum of $100 and $19.72 costs.

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, in its favor upon the first cause of action, and from an amended judgment in so far as said amended judgment directs that defendant have judgment against the plaintiff on the merits as to the second cause of action and awards costs to the defendant; also from an order denying plaintiff’s motion to set aside judgment and for a new trial, the plaintiff…

<p>Motion to set aside service of the summons upon defendant.</p>

<p>Depositions — examination before trial — subpoena duces tecum — partnership — evidence — witness.</p> <p>Any book or document produced under a subpcena duces tecum upon the examination before trial of defendants, composing a partnership, may be marked for identification but may not for this reason be inspected.</p> <p>If upon examination of the witness he refreshes his recollection by the use of any such book or document, it may then be inspected by counsel as to the .portion used by the witness to refresh his recollection, and he may be further examined regarding the same after inspection by counsel and such portion may be marked in evidence.</p> <p>If it appears from the testimony of the witness that an entry in his handwriting was a true statement of the facts at the time it was made but that even after inspection the witness has no recollection - of the facts, still the entry may be inspected and the witness examined concerning it and it may be introduced in evidence as an extension of the testimony of the witness.</p> <p>The question: “From whom did you purchase the merchandise set forth in those bills, which you shipped to Bigio Brothers ? ” should be answered by the witness.</p>

<p>Action to foreclose a mortgage.</p>

<p>Action upon a written lease.</p>

<p>Foreclosure — of mortgages — referee’s fees on sale — real property — costs — surplus —Code Civ. Pro. §§ 3297, 3307(7).</p> <p>Under section 3297 of the Code of Civil Procedure the referee on a sale in foreclosure is entitled to the same fees and disbursements as are allowed to a sheriff on a sale of real property- under a judgment, and where the property is sold for $10,000, or more, the limit of fifty dollars does not apply and the referee may receive such additional compensation as to the court may seem proper.</p> <p>Where premises sold in foreclosure are located in a county where the sheriff under section 3307(7) of the Code of Civil Procedure is entitled to three per cent upon the proceeds of a sale of real property under a judgment not exceeding $250,. and two per cent upon the residue of such proceeds, the referee to sell in the foreclosure action is entitled to the same amount to be computed only upon the cash received by him.</p> <p>Where the purchaser at a sale in foreclosure refuses to complete his purchase and there is a resale of the premises by order of the court he is liable for the costs and expenses of the resale, less the amount of the surplus arising thereon over that bid on the first sale.</p>

<p>Mandamus — when peremptory writ of, granted — State Finance Law, § 44 — city of New York — decedents’ estates.</p> <p>Under section 44 of the State Finance Law which provides: “ Whenever any sum of money, paid into court, shall have remained in the hands of any county treasurer, or of the chamberlain of the city of New York, for the period of twenty years, it shall be paid over by such officer with all accumulations of interest thereon, after deducting his legal fees, to the treasurer of the state of New York,” an application by the attorney-general on behalf of the people of the state for a peremptory writ of mandamus to compel the chamberlain of the city of New York to pay over to the state treasurer the amount of money accumulated between the years 1840 and 1897, and now on deposit in the treasury of the city of New York to the credit of the “intestate estates” fund, will be granted.</p>

<p>Action tried before the court without a jury.</p>

<p>Action in ejectment.</p>

<p>Trial before the court, without a jury.</p>

<p>Motion to vacate an order for the examination of a party before trial.</p>

<p>Election Law — electors — towns — military service of United States — constitutional law.</p> <p>Liquor Tax Law — when resubmission of four excise questions denied — evidence.</p> <p>The right to vote not being dependent on legislative action, it cannot be said as matter of law that, because chapter 815 of the Laws of 1917 makes no provision for taking and counting votes on excise questions submitted at an election duly held, qualified electors of a town by reason of absence while in the military service of the United States are deprived of their right to vote on such questions.</p> <p>Upon an application for a resubmission of such questions it is incumbent upon the petitioner to satisfy the court that the soldiers’ vote, if east or permitted, would have changed the result, and, in the absence of satisfactory evidence to that effect, the resubmission asked for will not be ordered.</p>

<p>Motion for an order amending nunc pro tunc the interlocutory and final judgments in an action for divorce.</p>

<p>Accounting — by administratrix — objections to account — actions — contracts — executors and administrators — retainer — attorneys — services.</p> <p>Upon the settlement of the accounts of an administratrix, it appeared that the only asset of the estate was the sum of $17,194.36, the total amount of recovery in an action for damages resulting in decedent’s death. The accountant showed a payment to the attorney retained by her of $8,597.18, fifty per cent of the amount recovered by her, and the special guardian objected to the payment thus made upon the ground that it was excessive and unreasonable in amount and not a proper credit to the extent claimed. It was contended that the contract of employment was of no effect and that the only question before the court was whether the amount the administratrix paid her attorney was a fair and reasonable compensation for the services shown to have been rendered. In dismissing the objections, it was</p> <p>Held, (1) that as the right to bring an action is given by the Code to the administratrix, and as it was necessary for her to have the services of an attorney to do this, she must be deemed empowered to engage such services, and, as an incident thereto, to agree upon the compensation that should be given therefor with the qualification that the amount so agreed upon is fair and reasonable; that the surrogate may not upon the final accounting of the personal representative entirely disregard a contingent contract for legal services and proceed to fix the value of the services upon the theory of quantum meruit and surcharge the account if it appears that the compensation paid exceeded the value of the actual services rendered.</p> <p>(2) That the contract must govern unless it is unconscionable or unreasonable and that, while retainers of fifty per cent have been held unconscionable in specific instances and are generally regarded with disfavor, such retainer as a matter of law is not excessive and does not render the contract unconscionable;</p> <p>(3) That each case must be decided upon its own facts, and that whenever such an agreement comes before the court on objection' it will be carefully scrutinized and the personal representative will be required to show that the payment is reasonable and conseionable before it will be allowed.</p>

<p>Trustees — power of — trusts — executors and administrators — accounting — wills — residuary legatee — bonds.</p> <p>The provisions of a testamentary trust.considered upon the judicial settlement of the accounts of the executors, and held:</p> <p>That it was the testator’s intention to constitute the trust company named the trustee of the trust mentioned in the will and codicil thereto.</p> <p>The fact that the trust company was not named “trustee” was of no consequence as the duties it was to perform were those of a trustee and the power and the authority given to it were such as a trustee would have.</p> <p>Under the circumstances existing distribution to the residuary legatee should be made only upon the execution by her of an agreement with the executors to deliver to them sufficient securities to make it possible for them to make a substitution, as provided by the will, in case the yield of the securities men-, tioned falls below the amount therein stated, and upon the faithful performance of such agreement the residuary legatee should give a bond to the executors.</p>

<p>Proceedings on the judicial settlement of the account of an executor.</p>

<p>Proceedings to obtain letters of administration.</p>

<p>Trusts — when not void — construction of — wills — legacy — children — suspension of power of alienation.</p> <p>Where a devise to testator’s wife for life of all the income of his estate is subject to a precatory suggestion in the following clause of the will that she shall, if she wish, contribute from the surplus of her income to the making of a trust fund for the benefit of testator’s grandchildren, including any subsequently born, until said trust fund shall amount to $5,000, the same to be divided among said grandchildren share and share alike upon the wife’s death, and the same clause contains a general legacy to the grandchildren of such sum from the personal estate in remainder upon the death of said wife as should together with such provision as she should have made for said fund be equal to $5,000, no trust or power in trust is created, as such construction would result in an attempt to create an unlawful accumulation.</p> <p>A trust for the payment of income until the youngest child of testator should attain the age of twenty-five years, with remainder to persons named, is not void as an unlawful suspension of the power of alienation.</p>

Application by executor of decedent’s estate for an order postponing collection of transfer tax, without penalty, upon certain securities mentioned in the petition.

<p>Motions to dismiss two appeals from orders of the City Court of the city of New York.</p>

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

<p>Appeal by plaintiff from judgment of the City Court of the city of New York, dismissing complaint.</p>

Appeal by the defendants from an order of the City Court of the city of New York, overruling the demurrer. to the defense in the reply to the set-off in the amended answer.

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.

<p>Cross-appeals from judgments of the Municipal Court of the city of New York, borough of The Bronx, second district.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, in favor of the plaintiff, for the sum of $633.

Appeal by plaintiff from a judgment of the City Court of the city of New York, dismissing complaint of plaintiff, and from an order in effect denying a motion for a new trial to the same effect.

<p>Statute of Frauds—pleading of — actions — contracts — appeal — trial.</p> <p>Where, upon the trial of an action for wrongful discharge in which the complaint alleged that defendants employed plaintiff for a year at a weekly salary, it appeared that plaintiff was orally engaged on a Saturday and was told that the year of his employment would begin on the following Monday, and a denial of defendants’ motion for leave to plead the Statute of Frauds on the ground that the contract was not to be performed within a year was on appeal held reversible error, and upon the new trial plaintiff, in addition to testifying to his employment on Saturday, told of a further conversation on the following Monday which amounted to nothing more than a request for a written agreement and defendants’ reply, no new contract being made, a denial of defendants’ motion for leave to plead the Statute of Frauds is error for which a judgment in favor of plaintiff entered upon a verdict will be reversed and a new trial ordered.</p>

Appeal by plaintiff from a judgment of the City Court of the city of New York in favor of himself, on the ground that said judgment is inadequate, and from an order denying plaintiff’s motion to set aside verdict.

<p>Appeal from an order of the Municipal Court of the city of New York, borough of Manhattan, fifth district, overruling demurrer to counterclaim and denying plaintiff’s motion for judgment on the pleadings.</p>

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

<p>Appeal by defendant from a judgment of tb.e Municipal Court of the city of New York, borough of Manhattan, first district, in favor of the plaintiff.</p>

<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.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district.</p>

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, in favor of the defendant, and from an order denying plaintiff’s motion for a new trial.</p>

<p>Counterclaim — Municipal Court of city of New York — actions — negligence — pleading — evidence.</p> <p>In an action brought in the Municipal Court of the city of New York to recover rent the defendant, who counterclaims for the amount of damage to his goods during his occupancy of the leased premises by reason of defective plumbing due to the alleged negligence of the plaintiff who agreed to pay the amount stated in the counterclaim, is entitled to offer evidence in support of his counterclaim, and the exclusion of testimony, under a ruling that a counterclaim in negligence could not be pleaded in the action, was error calling for the reversal of a judgment in favor of plaintiff.</p>

<p>Appeal—notice of, not served in time — affidavits — agreement — attorneys.</p> <p>Where, upon a motion to compel plaintiff’s attorney to receive a notice of appeal not served in time, the statements in the moving affidavits, relied on as showing that an oral agreement was made over the telephone with plaintiff’s attorney to extend defendant’s time to serve the notice of appeal, are flatly, positively and with much minuteness of detail contradicted by the opposing affidavits, the motion will be denied.</p>

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

<p>Contract — check given for rent — mistake as to street number of leased premises — lack of consideration.</p>