Volume 103 — New York Miscellaneous Reports

<p>Action by trustees under a last will and testament and codicil to obtain a judicial construction and determination thereof.</p>

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

<p>Release — of part of mortgaged premises — equity — liens.</p> <p>Foreclosure — of mechanics’ liens — mortgages — judgments — liens — evidence — lis pendens — actions — service — Lien Law, §§ 17, 19.</p> <p>While as between the original parties the release of a part of mortgaged premises, in the absence of statutory provision, does not affect the lien of the mortgage upon the remainder, yet as against others having liens against portions of the mortgaged premises a release of a portion of them may be inequitable and justify the interposition of a court of equity, but unless the mortgagee had notice of the liens at the time of releasing a portion of the mortgaged property equity will not give relief.</p> <p>A mechanic’s lienor is not a purchaser for value within the meaning of section 291 of the Real -Property Law, and where in an action to foreclose a mortgage, upon a contention of mechanics’ lienors that plaintiff’s mortgage should he adjudged a lien for a less amount than its face value because plaintiff or her assignor had released from the lien of the mortgage the bulk of the property covered by it, it appears that though the release was not recorded until nearly a year after the mechanics’ liens had 'been filed it was given before that time, the plaintiff is entitled to judgment.</p> <p>The fact that the liens of both defendants were filed more than a year, and no action had been begun on them nor had they been extended by order, operated automatically to discharge them under sections 17 and 19 of the Lien Law.</p> <p>Proof that before a year had expired another lienor had filed a lis pendens and commenced an action to foreclose his mechanic’s lien and had made the defendant mechanics’ lienors herein parties to that action, but there is no proof that either of them was served with a summons in that action, did not serve to bring them within the exception contained in said sections.</p>

<p>Action to compel the specific performance of a -contract.</p>

<p>Constitutional law — unconstitutionality of Laws of 1912, chap. 445 — Public Health Law, art. 19.</p> <p>Chapter 445 of the Laws of 1912, amending the Public Health Law by adding thereto article 19, relating to operations for the prevention of procreation, is unconstitutional.</p> <p>In an action brought to restrain the carrying out of the determination of the board of examiners, appointed pursuant to said statute, to perform upon plaintiff, an inmate of the Rome Custodial Asylum, who though physically strong was in the class known as feeble minded, the operation known as vasectomy for sterilization, plaintiff will be granted a permanent injunction.</p>

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

<p>Easement—■ right acquired by railroad by condemnation.</p> <p>Ejectment — action in — railroads — deeds — easements — statutes — corporations — contracts — estoppel.</p> <p>The right acquired by a railroad by condemnation is not a fee but merely an easement to be held only for the purpose for which the land was condemned; if that use be abandoned or the right thereto is lost by non-user or otherwise, the property reverts to the original owner.</p> <p>In an action in ejectment it appeared that plaintiff, a railroad company whose articles of association were filed in 1880, had never elected a director, never issued legally a share of stock, never held a stockholders’ meeting, never adopted by-laws, never completed any part of a railroad, never o.wned any rolling stock, and never was in possession of any part of the disputed land. The subscribers to its articles of association never paid any part' of their respective subscriptions, or for a share of stock, in cash. It further appeared that about six months after the organization of plaintiff the purchaser in foreclosure of a mortgage upon the premises in question conveyed to plaintiff all his right, title and interest in the property and franchises secured to him by the referee’s deed. It further appeared that plaintiff’s intention to abandon its easement was declared in its reports of 1891, 1893 and 1894, and its nonuser,' under circumstances showing an intention to ■ abandon, continued sufficiently long to extinguish the easement. The pred- • eeessor in title of the defendant purchased the right of way across the disputed land and built a railroad thereon about eighteen years after the organization of plaintiff, and it and its successors have ever since been in possession and used said land for their railroad purposes, claiming title thereto under deeds from the several adjoining owners and to the exclusion of every other corporation and person. Held, that defendant railroad company had the right in its defense to assert the extinction of plaintiff’s corporate rights and the statute having already declared it no determination of the court that such rights had ceased was required.</p> <p>Where a contract was attempted to be made in 1882 between plaintiff and an association of persons exercising corporate rights and franchises, all of whose attempted acts were thereafter judicially declared to be illegal and void, and it appears that said contract was not authorized by the board of directors of plaintiff nor executed by it or by any one authorized to act for it, and it never did any act under such contract, defendants were not estopped thereby from denying plaintiff’s corporate existence.</p>

<p>Action by trustee for an accounting.</p>

<p>Gifts — right to legally make — husband and wife — when gift to wife upheld — deeds — evidence — fraud — real property.</p> <p>A man may legally make a gift of a home to his wife if at the time he has other property sufficient to pay his debts and the amount devoted to the home is reasonable in view of his then means.</p> <p>A grant of real estate to a wife for a valuable consideration paid by her husband is presumed fraudulent as to his then existing creditors and, in an action to charge the property with the payment of a judgment recovered against him and others seven years after said conveyance in an action commenced prior thereto, the burden is upon him to disprove a fraudulent intent.</p> <p>Where the evidence in such an action tends strongly to corroborate the defendant and to disprove any ihtent on his part to defraud his creditors by such conveyance, and it appears that the value of the property, which was purchased as a home for his wife and family, was not disproportionate to defendant’s then means and was accepted in good faith by his wife without any intent to defraud the creditors of her husband, the gift will be upheld and the complaint dismissed.</p>

<p>Pleading — when demurrer will lie to complaint — title — parties — contracts — personal property.</p> <p>. A demurrer will lie to a complaint in an action to recover an elevator and appurtenances substantially installed in a building by a vendee under a conditional sales contract reserving title in the vendor until the contract price is fully paid, where it does not appear from the allegations in the complaint that the owner of the building had actual or constructive notice of the reservation of title prior to the installation.</p> <p>A demurrer will lie to such a complaint where the elevator and appurtenances have been substantially installed and have become a part of the realty and it does not appear from the allegations in the complaint that notice, actual or constructive, had been given to the owner of the reservation of the property as personalty prior to the installation.</p> <p>A demurrer will lie to such a complaint on the ground of a defect of parties defendant where the vendee is not made a party, since the determination of the action without his presence will subject the owner to a double hazard of recovery and his presence is necessary to a complete determination of the rights of the parties under the contract.</p>

<p>Actions — when may be instituted — for malicious prosecution — damages — pleading — partnership — fraud — trial — provisional remedies —■ negotiable instruments.</p> <p>Where in a civil action neither the person nor the property of the defendant was interfered with, as by injunction, attachment, arrest or some other provisional remedy, the defendant, though successful, is not entitled to maintain an action for malicious prosecution against the plaintiff notwithstanding the action may have been instituted and prosecuted without prob- ■ able cause, and maliciously, and resulted in damage to the defendant in excess of the costs recovered by him.</p> <p>Where a complaint alleges that after plaintiff had made and delivered to defendants certain promissory notes for merehandise purchased, the merchandise was returned and received in full satisfaction and payment of said notes, and that, notwithstanding, defendants, who were partners, conspiring with the intent to cheat and defraud plaintiff and to injure and damage it in its business reputation and credit, maliciously and without reasonable and probable cause, caused the said notes to be transferred by their firm to one of the partners with full knowledge on the part of defendants that the notes had been paid, and it is further alleged that the transferee of the notes with said intent maliciously and without reasonable and probable cause began an action to recover upon said notes, which action resulted in a verdict in favor of the plaintiff herein of no cause of action which on appeal was affirmed in all things; that by reason of said facts the business and credit of plaintiff was damaged, it was required to pay out large sums to defend said action and judgment is demanded for a certain sum against defendants, but there is no allegation or claim that defendants resorted to any provisional remedy or took any action in any way interfering with the plaintiff’s property, save the action upon the notes, defendants’ motion for judgment on the ground that the complaint fails to state a cause of action will be granted and the complaint dismissed.</p>

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

<p>The plaintiff moves for judgment on the pleadings and for an order appointing a referee to compute the amount due of principal and interest upon mortgage for the foreclosure of which this action is brought.</p>

<p>Gifts — action to establish a gift causa mortis — evidence — pleading — savings banks — dismissal of complaint.</p> <p>The evidence in an action to establish a gift causa mortis of savings bank-books delivered by decedent to plaintiff, his sister in law, for safe keeping just before he was taken to a hospital where he died from the effects of a surgical operation of neither an unusual nor perilous nature, considered, and held, that the alleged gift was not made in contemplation of death and the complaint should be dismissed.</p>

<p>Liquor Tax Law — action on bond to recover penalty for violation of — Sunday — excise.</p> <p>In an action brought by the state commissioner of excise on a bond to recover the penalty for a violation of the Liquor Tax Law, in which it is alleged that liquor was unlawfully sold on Sunday and that the premises were permitted to become disorderly, a prior adjudication in a proceeding brought by him for the revocation of the liquor tax certificate, based upon the same allegations and in which the certificate was revoked because of the unlawful sale of liquor on Sunday, is res adjudieata as against the defendant to whom said liquor tax certificate was issued.</p>

<p>This action was brought in the usual form to recover upon a promissory note alleged to have been made and discounted.by the defendants, as copartners, at plaintiff bank. Defendant Penwarden defaults. The answer of defendant Fox admits the making and discounting of the note, but sets up as a defense that prior to the commencement of this action the plaintiff had commenced an action against his codefendant Penwarden “ which action was founded upon the same note set forth in the complaint herein and was for the collection of the same amount of money; ” that plaintiff obtained a judgment therein which is still unsatisfied, “ and that said judgment is a bar to this action.”</p> <p>This issue coming up for trial before a jury, some formal proofs were offered by each side and at the close of the evidence both sides moved for a directed verdict in its favor. The court thereupon dismissed the jury and took the motions under advisement.</p>

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

<p>Application for the appointment of a substituted trustee,</p>

<p>Transfer tax—finding of appraiser in a, proceeding — appeal — partnership — decedents’ estates — evidence.</p> <p>Decedent, who died in 1915, had been a member of a firm whose articles of partnership gave the surviving partner the right to retain possession of the deceased partner’s interest in the firm for three years after his death and provided that the surviving partner’s acts in connection with the property of the firm should be binding upon the heirs and legal representatives of the deceased partner as if he were the absolute owner of the property. Upon the appraisal in a transfer tax proceeding of decedent’s interest in certain securities, which prior to his death had been deposited by the firm as collateral for the payment of certain trust notes issued for a loan to a railroad company constructed and operated by the firm, it appeared that the notes did not mature until nearly a year after the death of decedent and that in the unsettled condition of the financial market in the year succeeding his death the value of the securities pledged as collateral might fluctuate very much. It further appeared that the securities were returned to the firm upon maturity of the trust notes but there was no evidence as to the new liability incurred by the firm at that time or of the new arrangement made by it for the payment of the notes and the release of the securities. Held, that a finding of the appraiser that the pledged securities had no value as part of decedent’s estate at the date of his death should be affirmed.</p>

<p>Wills — construction of — executors and administrators — trusts — trustees — residuary estates — interest— curtesy.</p> <p>A testatrix whose estate consisted solely of personal property and who died leaving her surviving four daughters and three sons bequeathed a certain sum in trust for the benefit of the daughters with directions that the trustee pay to each of them the interest or income on her portion. The will then provided: “In the event of the death of any one or more of my said daughters, the portion or portions so held for her or them by the said trustee shall be held by the said trustee upon the same trusts for the use and benefit of the surviving sister or sisters, as the case may be, unless such daughter or daughters should die leaving children, in which event the portion of such daughter or daughters shall go to the children of such daughter or daughters absolutely free from the trust created.” One of the daughters died after her mother unmarried, the other daughters are married and two of them have children. Upon an application by the executor and sole trustee for the construction of the will held:</p> <p>There were four separate trusts created.</p> <p>The principal of the trust held for the daughter who died without issue should be divided equally and added to the principal sums held in trust for the remaining daughters, any accrued interest on the fund held in trust for the daughter who died at the time of her death should be paid to the executor of her will and the income received by the trustee since the. death of said daughter should be paid in equal shares to her surviving sisters.</p> <p>The will further provided that the residue of the estate should be divided among all of the children of testatrix equally but that the portions given and bequeathed to the daughters of testatrix should be held by the trustee “ for their sole and separate use and benefit respectively, free from the control and not subject to the debts of any husband or husbands whom they, or either of them, may marry, nor subject to the right or rights of curtesy or any marital rights of said husband or husbands respectively,” and the trustee was directed to pay the income or interest as directed by the will.</p> <p>Held, that the seven children of testatrix took the residuary estate share and share alike absolutely.</p>

<p>Accounting — by administrators —■ attorneys — parties — Surrogate’s Court — distribution — payment of moneys into court — county treasurers.</p> <p>Where a controversy arises over the funds of an estate collected by the attorney for the administrators the Surrogate’s Court may require him to deposit the funds to the credit of the estate pending the determination of the rights of the parties.</p> <p>Where a decree settling the accounts of administrators and ordering a distribution of the estate provided that any party might apply at the foot of the decree for further-relief, the decree will be reopened for the purpose of including in the account, as assets of the estate, moneys collected by the attorney for the administrators and retained by him without their knowledge or consent, and an order entered requiring the attorney to pay said moneys into court by depositing the same with the county treasurer to the credit of the estate subject to the further order of the court.</p>

<p>Wills — power of appointment contained in husband’s will — direction to apply fund — trusts.</p> <p>Where testatrix was the donee of a power of appointment in her husband’s will she was within her rights in directing her executor to apply the fund, the subject matter of the appointment, to any use to which her individual ■ estate could be devoted, though her will made no mention of the power or of the estate which was the subject thereof.</p>

<p>Accounting—distribution upon — what deemed assets — executors and administrators — wills — parties — infants — contracts — real property— title — Code Civ. Pro. § 2672. „</p> <p>The amount owing under a contract for the sale of real property is to be treated as personal property and the vendor holds the legal title to the property as security for the payment of the amount owing on the contract, and under section 2672 of the Code of Civil Procedure said amount is distributable as part of the personal estate of the testator.</p> <p>Testator bequeathed to his wife all his household furniture and an equal undivided one-third of all real estate owned by him at his death and gave the rest, residue and remainder of all his real and personal property to a nephew and a niece, infant parties to the present proceeding brought by the executor for the judicial settlement of his account and for the construction of the will. At the death of testator a contract for the sale of a farm, the only real estate owned by him at that time or in which he had any interest, with certain personal property, was in full force and effect, having been entered into prior to his marriage. No deed of the farm had been made and delivered but the executor collected the amount due on the contract and conveyed the farm to the vendee. Held, that the widow was entitled to one-third of the amount collected by the executor after deducting therefrom the debts and funeral expenses of the decedent and the expenses of administration.</p>

<p>Wills — construction of — legacy — bequests — residuary estate — gifts — trusts — executors and administrators.</p> <p>Testator bequeathed and devised his residuary estate to his executors in trust and directed them “ to sell at public auction and after paying all mortgages, taxes, interest and charges to apply the rest of the proceeds as follows: Eight thousand dollars ($8,000) thereof I give and bequeath to the children of my brother Arnold Gorsch, of Danzig, Germany, share and share alike. * * * Fifteen thousand dollars ($15,000) I give and bequeath to the children of my brother Bernhard Gorsch, residing near Thorn, Germany, share and share alike. * * * Eight thousand dollars ($8,000) thereof I give and bequeath to the children of my half brother Adelbert Dahm, residing at Berlin, Germany, share and share alike.”</p> <p>Arnold Gorsch had only one child who was alive at the death of testator. Bernhard Gorsch had ten children all of whom survived the testator except Adolph Gorsch who died leaving him surviving a widow and a daughter. Adelbert Dahm had three children, one of whom predeceased testator leaving a widow and a daughter, and since the death of the testator another son of Adelbert Dahm died leaving him surviving his father, a daughter of his deceased brother, and a brother who is still living. Held, that the three legacies were legacies to a class and should-be paid to those members of each class who were living at the death of testator when the gift was to take effect; the additional words “ share and share alike” do not alter the character of the bequest but in the circumstances must be deemed to direct the method of payment among those of the class entitled to take.</p>

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

<p>Wills—■ intention of testator — executors and administrators — trusts — husband and wife — actions.</p> <p>The executors of a will must take it as written, and where its words are clear and unambiguous the executors may not go outside of the will to determine the intention of their testator.</p> <p>Where testator by his will in clear and positive terms gave all his estate to his wife and only in the event of her not surviving him did the will provide for a further disposition of the estate, but she did survive him, trust provisions in the will for the benefit of others are nugatory and the executors are in duty bound to see that the estate of their testator passes, as intact as may be, to his widow, and an action which seeks to make a -different disposition of testator’s estate from that provided by the will is not maintainable by the executors.</p>

<p>Jurisdiction — of Surrogate’s Court — contracts — inspection of contents of safe deposit box — executors and administrators — transfer tax — motions and orders.</p> <p>While the Surrogate’s Court has no jurisdiction or power over a contract made by temporary administrators for the rent of a safe deposit box, an order may be granted permitting an inspection of the contents of the box by the executor and transfer tax appraiser in the presence of an officer of the safe deposit company, with direction that nothing be removed from the box.</p>

<p>Legacy—'payment of — interest on — notice to creditors — executors and administrators — bequests — wills — transfer tax — Code Civ. Pro. § 2688.</p> <p>Interest on general legacies should run from one year after the date on which letters testamentary were issued to the date of the respective payments of the legacies.</p> <p>A claim for interest, on general legacies paid after the period of publication of notice to creditors to present claims has expired, will be denied.</p> <p>As under section 2688 of the Code of Civil Procedure legacies may be paid after the completion of the publication of notice to creditors no deduction may be made from general legacies paid in full nine months after the issuance of letters testamentary ill order that the amount deducted may be added to the residuary estates, on a claim that the residuary legatees have been deprived of income from the date of payment to the expiration of one year after letters testamentary were issued.</p> <p>A bequest of all the remainder of testatrix’s jewelry, wearing apparel, laces, fans, personal ornaments and articles of personal use, to her husband, is a specific legacy.</p> <p>Executors are not entitled to commissions on unsold real estate over which they have a power of sale to pay legacies.</p> <p>A provision of the will held to disclose the intention of testatrix that any and all transfer taxes on legacies should be paid from the residuary estate.</p>

<p>Jurisdiction — Surrogate’s Court — when motion to punish administrator for contempt granted — service — executors and administrators — Code Civ. Pro. §§ 2510, 2554.</p> <p>Upon a motion to punish an administrator for contempt in failing to comply with a decree of the Surrogate’s Court directing the distribution of the estate of decedent, the surrogate may refuse to consider any questions except the jurisdiction of the court to make the decree and the alleged failure of the administrator to comply therewith.</p> <p>The surrogate cannot exercise equitable jurisdiction under section 2510’ of the Code of Civil Procedure if the facts of the matter before him bring it within the requirement of section 2554 of said Code which prescribes in detail how and when the jurisdiction must be exercised.</p> <p>Where the jurisdiction of the surrogate to make a decree directing the distribution of an estate is not questioned' and it appears that a certified copy of the decree was duly served upon the administrator and that he has failed to make the payments and the distribution provided for in and by said decree, except in part, the motion to punish him for contempt will be granted.</p>

<p>Application to vacate a decree judicially settling the accounts of an administrator.</p>

<p>Court of Claims — jurisdiction ■— awards — statutes — refiling of claim.</p> <p>While under chapter 657 of the Laws of 1915 the Court of Claims has jurisdiction to hear, audit and determine claims arising out of an automobile accident at the state fair on September 16, 1911, notwithstanding the lapse of time since claim accrued, subject to the restriction that no award shall be made or judgment' rendered against the state unless the claim has been filed with said court within one year from the enactment of said statute, a claim filed before said statute took effect must be refiled in order to bring it within the jurisdiction of the court to make an award.</p> <p>Ackerson, P. J., dissents.</p>

<p>Claim for damages for alleged negligence of the officers and employees of the state in the management and operation of the Champlain canal, by reason of which claimant’s lands were flooded and his crops destroyed.</p>

<p>Claim for damages for trespassing upon the premises of claimant by .various National Guard units, part of the military forces of the state, while encamped at Camp Whitman, Dutchess county. '</p>

<p>Claim for damages caused by the overflow of the waters of the Barge canal and the Mohawk river in the town of Frankfort, Herkimer county.</p>

<p>Damages — when state responsible — water and watercourses — awards — Code Civ. Pro. § 264.</p> <p>Where about forty-ñve acres of claimant’s fifty-five acre dairy farm in Oneida county were overflowed each year prior to 1910 by the rising of the waters of Wood creek, the center line of which was the southerly boundary of said farm, and as a result of the erection in that year, for Barge canal purposes, of a dam across the creek above claimant’s premises, all the water from the creek was diverted into the canal leaving the bed of the creek upon and along the lands of the claimant dry, and the crops and productivity of the forty-five acres were each year decreased from what they had been before the diversion, and the use of the water in connection with claimant’s dairy after January 1, 1913, was rendered impossible, such action on the part of the state was a violation of the rights of claimant, and the state so long as it continues such diversion is responsible in damages for the lessened utility of the premises affected.</p> <p>While the claim was not barred by lapse of time, because the diversion being continuous so also was the damage resulting therefrom, the award under section 264 of the Code of Civil Procedure is limited to the damage which accrued from six months prior to the notice of intention to file up to the time of the filing of the claim.</p>

<p>Contracts — with state for improvement of highway — when claim dismissed— damages — Laws of 1909, chap. 30.</p> <p>Where a contract with the state for the improvement of a highway by the construction of a road of the grouted bituminous macadam type reserves to the state the right to make all such additions to the contract as it deems necessary, making an allowance therefor at the prices named in the proposal for the work, and it is also agreed in and by the contract that any increase of quantities or extra work performed or materials furnished "shall be covered by a supplemental contract as provided by chapter 30 of the Laws of 1909, and amendments thereto ” and that “ whenever an increase of quantity * * *</p> <p>occurs, then such excess must be agreed upon in writing as provided in chapter 30 of the Laws of 1909 ” there can be no recovery for any work performed or materials furnished, unless they wer& performed pursuant to the provisions of the original or a supplemental contract executed by the state highway commissioner, and no conduct of other émployees of the state, or of the contractor himself, or of both, can create an obligation, binding upon the state, for work performed otherwise.</p> <p>The contractor has the right to refuse to comply with the directions of an engineer to perform work not within the original or a supplemental contract, but in ease he obeys the engineer his act is voluntary and does not "bind the state to pay, and where claimant testifies that he knew that a certain item of work was not required by the contract, and that he complied with the engineer’s directions to “ avoid friction ” with the latter, his claim for such work will be dismissed.</p>

<p>Claim for damages filed by the Atlanta Construction Company for the building of a county highway known as Dresden-Penn Tan county highway No. 1205.</p>

<p>Appeal by plaintiffs from a judgment of the Municipal Court of the City of New York, borough of Manhattan, second district, in favor of defendants.</p>

<p>Contracts — action to recover damages for breach of contract and oral renewal of written contract — evidence — new trial.</p> <p>Where, in an action to recover damages for breach of an oral renewal for a year of a written contract of employment, it appears that the term was fixed in advance of its beginning and the compensation, then left unfixed, was subsequently agreed upon, the renewal constitutes a binding agreement for one year at the new rate, and a judgment dismissing the complaint for failure of proof will be reversed and a new trial ordered.</p>

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

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

Appeal by plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, ninth district, denying plaintiff’s motion to vacate an ex parte order requiring plaintiff to give fifty dollars as security for costs because of the plaintiff’s non-residence in the state.

<p>Judgments — foreign — enforcement of —- interpretation of “full faith and credit ” clause of Federal Constitution — payments — contracts^</p> <p>In an action brought in this state upon a foreign judgment based upon a foreign statute authorizing an action to recover . moneys paid to the defendants who were stockbrokers on account of stock transactions had with plaintiff, the court must accept the interpretation of the “ full faith and credit ” clause of the Federal Constitution by the Supreme Court of the United ' States and enforce the judgment though it is based upon a statute which is contrary to the -declared policy of our state.</p> <p>Where the foreign court declined to find that certain payments made to plaintiff by the defendants during the transactions between them were a return of any part of the original deposit, and also specifically refused to find that there were any valid sales or purchases of stock made or contracts therefor entered into, it must be deemed adjudicated for the purposes of the present action that the transactions between the parties were illegal and that no affirmative cause of action to recover could be based on said payments.</p> <p>The principle of res adjudicata is also fatal to a counterclaim for the repayment of losses which were made in the account, upon plaintiff's orders.</p>

<p>Mechanic’s lien — action to foreclose — landlord and tenant — lease — when lien attaches in favor of one who furnished labor and materials — contracts.</p> <p>Where the landlord of premises rented for restaurant purposes was, by the terms of the lease, in a position to force the tenant even against his will to make necessary repairs, and the lease, which provided that all improvements-to the premises should immediately become the property of the landlord, gave notice to all contractors that the premises would, in effect, be liable for any lien for alterations and repairs, a lien attaches in favor of one who furnished labor and material for the making of" such repairs as were reasonably within the contemplation of the parties at the making of the lease, the landlord having accepted the benefit of such repairs by reletting a portion of the premises for restaurant purposes after the original tenant had vacated the premises.</p> <p>Where, in an action to foreclose a mechanic’s lien for the making of such alterations and repairs, it appears that there were two separate and independent contracts between the plaintiffs and the tenant — one for the sale of certain chattels and the other for the alterations and repairs ■—the plaintiffs, in the absence of agreement, had the right to apply as they saw fit checks given by a distilling company which was financing the tenant, who, in turn, indorsed the checks to plaintiffs.</p> <p>A sum advanced to the tenant for the purpose of completing the top floor of the building being in the nature of a loan was not the subject of a mechanic’s lien.</p> <p>Where plaintiffs paid one a weekly wage sufficient to compensate him for superintending work done by laborers selected by him, the amount of an additional sum paid to him by way of profit for which no good nor satisfactory reason was shown .must be disallowed.</p>

<p>Application under sections 474 and 475 of the Judiciary Law • to establish and enforce attorney’s-lien.-</p>

<p>Action to recover a penalty.</p>

<p>■Executors and administrators — when foreign, may sue or he sued — process — service — ancillary letters — judgments — when motion to vacate personal service of summons denied — Code Civ. Pro. § 1836-a.</p> <p>Section 1836-a of the Code of Civil Procedure providing that “An executor or administrator duly appointed in any other state * * * may sue or be sued in any court of this state in his capacity of executor or administrator in like manner * * * as a non-resident,” the personal service of a summons made upon a foreign executor while sojourning in this state is good.</p> <p>Where no ancillary letters have been issued in this state to a foreign executrix, the mere fact that the plaintiff in an action in equity brought on behalf of himself and all creditors of the testator of the foreign executrix to reach certain real and personal property of the decedent alleged to be situated in this state and to have the same applied to the payment of the indebtedness due from said decedent might not conveniently be able to make a judgment in his favor effective by collection is not a ground for denying him the privilege of obtaining in the courts of this state an adjudication of his rights, as any judgment recovered by him against the foreign executrix would be valid under the “ due process ” clause of the Federal Constitution, and a motion to vacate the personal service of the summons upon said defendant while sojourning in this state will be denied.</p>

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

<p>Action for an annulment of marriage.</p>

<p>Appearance—notice of — attorneys — civil rights of members of military and naval establishments in present war — service — pleading.</p> <p>While the appearance of an attorney appointed by the court pursuant to the act of Congress passed to protect the civil rights of members of the military and naval establishment in the present war may properly be noted at any stage of the proceeding, such an attorney has no right to serve a notice of appearance or an answer binding on the absentee, nor may the court award the attorney any compensation for his services, the rendition of which should be regarded as a patriotic duty.</p>

<p>Condemnation proceedings — motion to confirm report of commissioners in, granted — city of New York —awards — evidence — damages.</p> <p>Where, upon motion to confirm the report of commissioners in condemnation proceedings, it appears that the same map on which the closing of portions of two certain streets in the city of New York was shown provided for the opening of a new street alongside the Brooklyn bridge connecting the unclosed portions of said streets, and that practically the only beneficial effect of the new street is to enable vehicles entering either street from the north to return in the same direction by going around the block instead of by turning about and returning along the same street on which it entered, it might seem unjust to compel the owners of property north of the bridge to pay for the slight benefit accruing from the opening of the new street and not permit them to recover damages for the material injury occasioned by the closing of the old street, yet where the commissioners made merely nominal awards where the properties are so situated that they have convenient access to other streets running in both directions and award large and substantial damages where the properties are so situated that access to and from the south is inconvenient, their report will be confirmed, it not appearing that the commissioners have proceeded upon an erroneous theory or that their awards are inconsistent with the evidence or legally excessive or unequal.</p>

<p>Action in conversion.</p>

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

<p>Certiorari proceedings.</p>

<p>Action for partition.</p>

<p>Actioe" for the construction of a will.</p>

<p>Specific performance — memorandum of sale must disclose name of intending purchaser — Real Property Law, § 259.</p> <p>A memorandum for the sale of real property which does not disclose the name of the intending purchaser is not sufficient under section 259 of the Real Property Law and cannot be made the basis of an action for specific performance.</p>

Application by executors for an order exempting from taxation the remainder after certain life estates in real estate owned by decedent at the time of her death.

<p>Guardians — general — duty of —accounting — trustees.</p> <p>Where among the assets of the estate of the mother of an infant were certain securities not of the kind sanctioned by law, upon payment of the same over to the father of -the infant as his general guardian, by himself and another as trustees of the mother’s estate, it was the duty of the guardian to dispose of them, and upon his accounting as such general guardian he will be directed to make good the difference between the price at which they could have been sold when he received them and the price now obtainable for them.</p> <p>The decree entered upon the accounting of said guardian will provide for the turning over of the securities to him personally for use in realizing the amount with which his account is hereby surcharged.</p>

<p>Transfer tax—wills — appraiser — remainders — trusts — Tax Law, § 230.</p> <p>Section 230 of the Tax Law applies to transfers of interests in estates presently contingent, not those which are remotely possible, and where the different probable eontingencies such as the death of a child or lineal descendant of the decedent are provided for in his will, in each ease the property going to a child or lineal descendant, neither the remainders of. the residuary estate nor the remainders of funds held in trust for the children of decedent are taxable at the rate of five per cent to “persons not now determined.”</p>

<p>Motion to dismiss indictments,</p>

<p>Motion to set aside verdict of conviction and for a new trial.</p>

<p>Action for injunction and damages.</p>

<p>Contracts — provisions of — breach of — highways — damages.</p> <p>A contract for the construction of a macadam highway provided that each of the two courses should be built of crushed stone known as “run of the crusher.” When the contractor began the laying of the stone he was stopped by the state engineer in charge of the work and was ordered and directed not to use “run of the crusher” stone merely, but to grade it in separate bins according to size and to place in the bottom course three-inch stone, to be filled with dustless screenings and rolled. The contractor after calling the attention of the engineer to the specifications of the contract protested against these and other directions of said engineer, which were given pursuant to instructions received by him from the then state commission of highways, and against complying with them. Upon the refusal of the engineer to permit the work to be done except pursuant to such directions the contractor completed the work at a very great increase of expense to him. Upon the hearing of a claim for damages for a breach of the contract due to the action of the state's representatives in compelling claimant to grade and apply the stone in a manner not within the obligation of the contract, held, that a provision of said contract that “All contingencies arising during the prosecution of the work shall be provided for to the satisfaction of the commission and as may be agreed upon in the original or supplemental contract executed by the commission” could not defeat a recovery for the loss inflicted on claimant by following the directions of the engineer in relation to the crushed stone.</p> <p>Where during the course of the work the claimant performed various other services and furnished other material incident to the construction of the road, not provided for or contemplated by the contract plans or specifications, and it does not appear that they were performed or furnished over claimant’s opposition and after his protest, nor that they were not • performed or furnished willingly or by agreement between claimant and the state, there can be no recovery therefor on the theory of a breach of the original contract, as by compliance with the orders and directions, if any were given, claimant had waived his rights in that connection.</p>

<p>Highway Law, § 2(5), 125(8), 130(g)—construction of — contracts — highways — bridges.</p> <p>Where, during the progress of the work done under a contract for the improvement of a county highway, a steel bridge thereon was found to be defective and in such condition that it probably was insufficient to carry, the traffic after the improvement was made, and, after an arrangement had been made with the proper authorities for the construction of a concrete bridge having a span of fifty-six feet to replace the defective bridge, claimants were directed by the resident engineer to perform the work, no part -of which was provided for in the original contract, there can be no recovery in the absence of a supplemental contract executed by the state highway commission, pursuant to section 130(9) of the Highway Law.</p> <p>Section 2(5) of the Highway Law excluding from the definition of a “highway” all bridges having a greater span than five feet, the construction of the concrete bridge in question was beyond the power and authority of the state highway commission to order or to obligate the state therefor.</p> <p>Section 125(8) of the Highway Law, which provides that the division engineer “may provide for such other work as may be required to complete the construction or improvement in a proper manner,” confers no authority on him to obligate the state without restraint or otherwise for the construction of bridges.</p>

<p>Motion for a certificate of reasonable doubt.</p>

<p>Motion to vacate a warrant of attachment.</p>

<p>Motion to set aside order for service of summons by-publication.</p>

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

<p>Action for settlement of the accounts of a trustee and for the construction of a will.</p>

Defendant demurs to plaintiff’s complaint on the ground that it does not state facts sufficient to constitute a cause of action.

<p>Motion to compel purchaser at a foreclosure sale to take title, and also a motion that he be relieved therefrom.</p>

<p>Actios for a divorce.</p>

<p>Action tried before the court and a jury.</p>

<p>Real property—no acquisition of, through crime—tenants by the entirety — actions — executors and administrators — criminal law — wills — evidence.</p> <p>No one will be permitted to acquire property by his own crime.</p> <p>Where, while plaintiff’s testatrix and defendant’s intestate were tenants by the entirety of certain real estate, he murdered her and immediately took his own life, the executor and heirs at law of the wife will be granted judgment in an action in equity against the administratrix and the heirs at law of the husband adjudging that plaintiffs are the owners of the real estate in question in accordance with the will of their testatrix, even though there is no evidence to sustain an allegation of the complaint that the husband wilfully murdered his wife in order that he might thereby acquire and possess the real estate described in the complaint.</p>

<p>Contracts — municipal corporations — supervisors of Niagara county — liens — default — Lien Law, §§ 12, 25.</p> <p>Where the board of supervisors of Niagara county entered into a contract for the erection of a county clerk’s office, the filing of a notice of lien for work done and materials furnished with the clerk of the board of supervisors and the county treasurer is sufficient under section 12 of the Lien Law.</p> <p>A notice of lien for work done and materials furnished under said contract was filed with the clerk of the board of supervisors and the county treasurer; within an hour another- lien was filed and on the same day a copy thereof was served upon the chairman of the board of supervisors and on the following day the first lienor served a copy of its notice of lien on said chairman. Held, that under the provision of section 25 of the Lien Law that persons having liens “ shall have priority according to the date of filing their respective liens ” the lien first filed was entitled to priority.</p> <p>Default having been made by the contractor, no contract on the part of the county to pay interest could be implied and a claim therefor should be disallowed.</p>

Application by state comptroller for an order designating an appraiser to appraise certain personal property and to institute proceedings to determine the residence of said decedent.

<p>Transfer tax — joint ownership of personal property — real property — Tax Law, § 220(4).</p> <p>Where decedent at her death had possession of a certificate of the New York Investors’ Corporation for $1,000, which was made payable to her and another and the survivor of them, one-half of the amount only is subject to a transfer tax as part of her estate.</p> <p>A transfer of real estate made in 1913 subject to and reserving to the grantor a life estate in the property is subject to a transfer tax under section 220(4) of the Tax Law as a part of the estate of the deceased grantor.</p>

<p>Sales — action on — trial — appeal — new trial — Personal Property Law, § 126(2) as amended by chap. 571, Laws of ign.</p> <p>Under an accepted order from defendants, plaintiff agreed to deliver 4,000 dozen pairs of hose at a fixed price, deliveries to be made during October, November and December, 1916, and, under a further order for an equal quantity for a fixed price, the goods were to be delivered in December, 1616, and prior to January 15, 1917, “ 'after the completion of other shipments ” which plaintiff had agreed to make to defendants. Certain of the goods were shipped in October, 1916, on account of the first order and on the thirtieth of that month there was a shipment aggregating $1,259. Including said shipment and other deliveries on account of the first order there still remained 2,300 pair to be delivered and no goods were ever shipped under the second order. In an action to recover the contract price for the October shipment it appeared that eoincidently therewith plaintiff wrote to defendants that owing to the high price of yam all future orders would be filled at an increase of twenty per cent over the contract price; that it would be impossible to fill orders at the old price and that it would not work on any more of defendants’ order until further notice. In answer to a letter from defendants calling for an immediate settlement of the matter plaintiff replied that it would not change its attitude and that unless defendants gave notice forthwith that they would pay the higher prices plaintiff would fill orders for other customers at the advanced rate. The next day defendants answered that they would insist that the 'agreement be kept by the delivery of every doaen due, at the prices and terms of the orders, and if necessary they would use all proper methods to protect their rights. This and the correspondence which followed left no doubt that while plaintiff would hold to its repudiation of the contract it would insist upon defendants’ strict compliance with the letter of their obligation thereunder. Meld, that as under section 126(2) of the Sales Law (Personal Property Law, as amended by chapter 571 of the Laws of 1911) it was a question of fact whether the failure of the defendants to pay for the October shipment justified plaintiff in refusing to continue further deliveries under the contract an instruction to the jury that, as matter of law, such failure did justify such refusal, was erroneous, and inasmuch as the facts involved were not in dispute it was equivalent to an instruction to the jury to find a verdict for plaintiff.</p> <p>In default of a motion by defendants for the direction of a verdict the court, on appeal from a judgment in favor of plaintiff entered on a verdict, will reverse said judgment and grant a new trial.</p>

Appeal by defendant from.a final order in summary proceedings, in the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of plaintiff, which also dismissed the defendant’s counterclaim.

<p>Sales — payment — delivery — carriers — examination of goods — Personal Property Law, § 128.</p> <p>Where a contract for the sale of goods to be shipped by a carrier contains no terms of payment, delivery and payment are concurrent acts and the buyer is not entitled to examine the goods before payment of the purchase price. (Personal Property Law, § 128.)</p>

Appeal by the defendant from a judgment of the City Court of the city of New York awarding damages to plaintiff for personal injuries.

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, dismissing the complaint after a trial before a jury.

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

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

<p>Case —■ on appeal — motions and orders — Municipal Court of city of New York — rules.</p> <p>Nowhere by the rules of the Appellate Term or by the Municipal Court Code is the appellant from a judgment from the Municipal Court of the city of New York required to “ make a ease,” and an order made by a justice of said court declaring that the appellant waived his right to “ make a case ” is unauthorized.</p>

<p>Demurrer to complaint.</p>

<p>Appeal taken by the state comptroller from an order confirming the report of. the appraiser fixing and assessing the transfer tax.</p>

Application by state comptroller to strike from this record memorandum signed by the appraiser designated by this court to appraise the estate of decedent.

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

<p>Application to vacate a decree appointing a substituted trustee and for an order directing the filing of an account.</p>

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

<p>Motion to punish the defendant for contempt of court.</p>

<p>Deeds—restrictive covenants contained in — release — real property — damages — actions.</p> <p>In an action for damages for breach of a restrictive covenant in a deed of a certain lot against the use of the premises for the sale of ardent or intoxicating drinks, it appeared that a deed from the original owner of said lot and others, made in 1848, and containing a like covenant, provided that, if the conditions of the deed were not faithfully performed and kept, the estate in the premises of the grantee, his heirs and assigns, or any of them, should cease and determine with immediate reversion to the grantor, his heirs and assigns. The lot in question was later conveyed by B by a deed containing a like covenant with the same right for its breach. Thereafter the original owner released all the lands conveyed by him from the effect of such condition subsequent but there was no release to B, nor did he join in the covenant with his co-owners. In 1885, the lot in question was conveyed by defendant free and clear of all incumbrances. Upon the denial of a motion to set aside a verdict in favor of defendant, held, that the condition imposed by the original owner was valid and enforcible against all the grantees to whom was conveyed land burdened with the conditional limitation.</p> <p>Upon the execution of the release to all the grantees of the original owner of his right to enforce the condition subsequent, the possibility of rev.erter fell, and the previous grant by B could not of itself affect the sort of fee conveyed but its effect was to continue to impose for the benefit of adjacent property owned by the original grantor the prevention of the described use of the property.</p> <p>When this right was lost to the original owner by the execution of the release and all other owners consented to its abandonment, B, who owned no adjoining property and was not a grantor to a number of grantees whom he was subjecting to similar conditions for the preservation of the character of the neighborhood, was no longer a common covenantor and was devoid of right or obligation and, therefore, of remedy.</p>

<p>Action to recover savings bank deposit.</p>

<p>Motion by defendant for a new trial on the minutes.</p>

<p>Appeal by defendant from a judgment of the City Court of Buffalo rendered in favor of plaintiff.</p>

<p>Contested application for letters of administration.</p>

<p>Contested proceedings for the appointment of an administrator de bonis non.</p>

Proceedings by an attorney to ascertain the value of services rendered by him to executors for the benefit of the estate.

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

<p>Proceeding to compel executors to render and settle their account.</p>

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

<p>Carriers — of merchandise — delay in delivery — damages — evidence — judgments.</p> <p>The ordinary measure of damage in an action to recover for a loss due a carrier’s failure to deliver with reasonable dispatch goods shipped is the difference in the market value between the ' time of arrival and the time when the goods should have arrived.</p> <p>General damage cannot become special damage because of the unusually great loss due to a short duration of the season for a sale in which the goods are ordered, and unusual loss caused by the delay in carrying seasonal goods does not create an exception to the ordinary, or market value, rule.</p> <p>Plaintiff, a New York city dealer in straw hats, shipped a certain lot of them to a customer in Iowa who refused to accept them and by arrangement with the plaintiff they were delivered 1 to a railroad company for reshipment to plaintiff. On June 26, 1916, at Chicago, the goods were turned over by the initial carrier to the defendant and on the day after their arrival in New York city, July 15, 1916, they were delivered to. plaintiff. Plaintiff in his testimony fixed the time ordinarily required for the carriage by defendant from Chicago to New York as three days and defendant offered no proof on the subject. The value of the goods on the day when due to arrive after deducting the value of the damaged hats was proved as $781, the value of the goods when they did arrive was $468.60, and the court awarded plaintiff the sum of $312.40, the difference between these two items, and an additional sum of $11.75 for damage to some hats in transit. Held, that the judgment should be modified by deducting therefrom the item of $11.75 for damage, there being no sufficient evidence to support said allowance, and, as so modified, the judgment will be affirmed.</p>

<p>Contracts — renewal of — evidence — corporations — trial — verdict.</p> <p>The presumption of a renewal of a yearly contract of employment by holding over is one of fact based on an implied agreement.</p> <p>The authority of all the officers of a charitable or non-business corporation to bind it by contract must be specifically proved.</p> <p>Where in an action to recover damages for wrongful discharge plaintiff claimed a renewal of a contract of employment for a year by a holding over with the consent and acquiescence of the president of the defendant, a domestic corporation organized for charitable purposes, but offered no evidence that said president was authorized to renew the contract, motions1 to dismiss and to direct a verdict for defendant reserved at the trial will be granted upon setting aside the verdict in plaintiff’s favor.</p>

<p>Condemnation proceedings — by city of New York to acquire lands for school purposes — schools — Greater New York Charter—evidence — real property.</p> <p>Where, in a proceeding brought by the city of New York to acquire title to certain lands as a site for school purposes, it appears that before the case was tried the buildings on said lands were voluntarily destroyed by the city in direct violation of section 1445 of the Greater New York Charter, which requires the trial justice to view the real property to be acquired, the city is precluded from introducing evidence as to the value of such buildings.</p>

<p>Public service commission — gas companies — city of Buffalo — natural gas — corporations — evidence — injunctions.</p> <p>Upon .the filing by defendant, a gas company, in the office of the public service commission, second district, of a schedule of proposed increase of rates for natural gas in the city of Buffalo, a complaint was made by the mayor of the city and steps taken through the public service commission to investígate the reasonableness of the suggested new rate or rates. Held, that a stipulation entered into, several years before, by the defendant and several other corporations with said commission, upon- granting defendant’s request to purchase, take over and operate the various gas plants and exercise various rights and privileges belonging and appertaining to the other said corporations, providing that in any proceeding to fix the rate or rates which should be charged as a maximum or otherwise, etc., the burden of proof should be upon the defendant to establish affirmatively that any price in excess of thirty-two cents gross and thirty cents net for each 1,€00 cubic feet of natural gas is just and reasonable means that the burden is assumed by defendant to establish that any proposed new rate is just and reasonable before such rate could be put into effect and that the only way in which it could be put into effect is by the judgment to be entered by the public service commission after investigation, and upon application by said commission collection of the higher rate will be enjoined until such determination.</p> <p>An offer of the defendant to issue rebate certificates with bills and to deposit money in bank to secure reimbursement in ease the proposed new rate be held unreasonable cannot be given any controlling weight.</p>

<p>Prison Law, § 230(3) as amended by Laws of 1916, chap. 358—^pro-visions of — convicts — parole hoard — compensation.</p> <p>Under section 230(3) of the Prison Law which, as amended by chapter 358 of the Laws of 1916, provides that “ any convict now confined * * * who is subject to the jurisdiction of the parole board * * * may also earn in each period of thirty days * * * from the time this section as hereby amended takes effect * * * in reduction of the minimum term * * * as compensation for efficient and willing performance of duties assigned to him or her, not to exceed ten days in any such thirty-day period in which the duties assigned are performed, etc.,” one committed to prison on October 14, 1914, under an indeterminate sentence of from five to ten years is only entitled to' compensation which he may have earned since May 1, 1916, when the amendatory act took effect.</p>

<p>Surrogates’ Law of 1914 — duties of surrogate — contested probate proceedings —■ trial — wills — jurisdiction — jury — witness — evidence — testamentary capacity — verdict — Code Civ. Pro. § 2614.</p> <p>Under the new Surrogate’s Law of 1914 no decree of probate can be entered pro forma on the findings of a jury.</p> <p>Until some surrogate, after the verdict of the jury in a contested probate proceeding, has the courage to say: “ I am, as surrogate, not satisfied in my conscience with the verdict and therefore, under section 2614 of the Code of Civil Procedure, I direct a second trial of the issues by another jury before I will decree probate or refuse probate, as the verdict may require,” the meaning of. said section, which provides that “ Before admitting a will to probate, the surrogate must inquire particularly into all the facts and circumstances, and must be satisfied with the genuineness of the will, and the validity of its execution,” can only be decided on an appeal from such direction.</p> <p>Where on the testimony taken in a contested probate proceeding upon the issues of due execution, testamentary capacity and undue influence, there is no issue of fact left for the jury which in accordance with the surrogate’s direction answered the questions submitted to it, a motion by proponent based on the directed findings of the jury for a decree of probate will be granted and contestants’ motion for a new trial will be denied.</p> <p>Where the issue as to the due execution of the paper propounded as the last will of the testator is fully established, it is not only proper for the surrogate to direct the jury to find that the paper was executed pursuant to the Statute of Wills, but it is error for him not so to do in the absence of testimony which would have justified the submission of that issue to the jury.</p> <p>Where alleged conflicting declarations of the attesting witnesses made out of court in nowise contradict their testimony as to the due' execution of the paper, no submission to the jury as to the credibility of the witnesses is proper.</p> <p>While the testimony of an attesting witness to a paper propounded as a last will may be impeached by proof of his contradictory statements made out of court, such evidence in order to impeach the attestation of the paper should be extremely clear, and such alleged declarations when made only to contestants or to interested parties and proved by 'them only are of very little weight.</p> <p>It being admitted that an attesting witness did act as such and signed the attestation clause, his contradictory declarations, out of court, as to other matters should be scrutinized and disregarded if inconsequential as to the fact of attestation; if such declarations are of a trifling character they amount to nothing as impeachment of credibility, and in any event cannot impeach the fact of attestation or the factum of a will admitted to have been witnessed and executed.</p> <p>The opinions of the attesting -witnesses as to the sanity of the testator and his competency to" make a will are not impeached by proof of their trifling inconsistent statements made out of court unless there is some other substantial proof of the testator’s incomp eteney.</p> <p>Where in a contested probate proceeding the contestants on the issue of testamentary capacity offer nothing substantial or proper for the jury to decide, the direction of the surrogate to the jury to find testamentary capacity is not erroneous.</p> <p>Where the contestants fail to sustain the burden of proof on the issue of undue influence, the surrogate must direct the jury to find the issue in the negative.</p>

<p>Jurisdiction — of surrogate — statutes — accounting — trustees —■ nonresidents — wills,.</p> <p>A surrogate possesses no jurisdiction not referable to some statute even though it can be construed only by reference to historical enactments carried into it by implication.</p> <p>Where upon a proceeding brought for the judicial settlement of the accounts of a testamentary trustee it appears that both he and the testator were non-residents and the realty in the trust estate0 was and is situated outside of the state of New York, and the personalty though physically within has its legal situs outside of this state, the surrogate has no jurisdiction of the proceeding though the will was proved here.</p>

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

<p>Action for a permanent injunction.</p>

<p>Injunctions — ordinance prohibiting sale and distribution of certain newspapers — city of Mount Vernon.</p> <p>There being nothing in the statute (Laws of 1892, chap. 182), incorporating the city of Mount Vernon, to indicate that there was any legislative intent to confer upon the local authorities of the city authority to pass an ordinance making it unlawful, from the date that it should take effect until the end of the present war, to print, publish, circulate, sell or distribute, or cause to be printed, published, circulated, sold or distributed certain designated newspapers and déelaring any violation of the ordinance to be a misdemeanor, etc., an injunction pendente lite will be granted the publisher of said newspapers on its complaint that the enforcement of said ordinance will infringe its property rights.</p>

<p>Wills — contract by unmarried woman to make — marriage — Decedent Estate Law, § 36.</p> <p>Section 36 of the Decedent Estate Law, which declares that a will executed by an unmarried woman shall be deemed revoked by her subsequent marriage, is not to be so construed as to make it impossible for a woman to contract away in advance of her marriage the right to provide for her husband by will.</p> <p>A written contract entered into by four sisters requiring each to execute a will unalterable and irrevocable by codicil or otherwise, providing first for her descendants, and, in the event of her death without leaving descendants her surviving, that all of her propertv should go in equal shares to the survivors of said four sisters after the payment of debts and funeral expenses, and the payment of legacies to each of her brothers, and of one dollar to her husband should she marry, and the agreement further provides that in case she married after making such will she should make another will with identical provisions except for such changes as would be necessitated by her marriage, is not contrary to public policy on the ground that it was designed or tends to restrain marriage.</p>

<p>Action for negligence.</p>

<p>Tax Law, § 2, as amended by Laws of 1916, chap. 323—taxes — definition of a “ special franchise ” — bridges.</p> <p>Though the state may tax the right to maintain that portion of the Suspension bridge across, the Niagara river at Niagara falls which extends from the easterly .margin of the river to the centre thereof, which is the international boundary line, such right is not within the definition of a “ special franchise ” under section 2 of the Tax Law, as amended by chapter 323 of the Laws of 1916, but the bridge should be assessed by the local assessors as “ land.”</p>

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

<p>Transfer tax — when bonds not subject to additional tax — Tax Law, §§ 221-b, 331.</p> <p>Where decedent at the time of his death, September 28, 1917, two days before the assessment for personal property was made for 1918, was the owner of certain railroad bonds which he had purchased on October 16, 1916, upon which no tax had been paid or stamps affixed as provided by section 331 of the Tax Law, said bonds, which could not have been included in the personal property on which he was assessed in 1917, are not subject to the additional tax of five per cent under section 221-b of the Tax Law, added by chapter 700 of the Laws of 1917.</p> <p>Though decedent might have paid the tax provided by said section 331 it was not incumbent on him so to do, as he could rely on the other alternative and pay the personal property tax.</p>

<p>Appeal — to Court of Appeals—by special guardian — infants — costs.</p> <p>Where the Court of Appeals affirms an order of the Appellate Division entered upon its decision that the word “ children ” as used in the will of the testator did not include “ grandchildren,” the special guardian who took the appeal will be awarded $500 as compensation, payable out of the estate, though under the decision upon the final appeal the infants represented by him are not entitled to any part of the estate.</p>

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

<p>Appeal by defendants from a judgment of tlie Municipal Court of the city of New York, borough of Manhattan, sixth district, in favor of plaintiff.</p>

Appeal by the plaintiff from a judgment entered in the Municipal Court of the city of New York, borough of Manhattan, second district, in favor of the defendant, dismissing the plaintiff’s complaint.

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

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

Appeal by defendants from an order of the City Court of the city of New York denying their motion made on the judge’s minutes to set aside the verdict and for a new trial.

Appeal by defendant from a judgment of the-City Court of the city of New York, in favor of plaintiff, entered upon a directed verdict.

<p>Motion to set aside a verdict and for a new trial.</p>

<p>Contempt — when motion to punish for, denied — actions — motions and orders — husband and wife — alimony — affidavits.</p> <p>Before the court can grant an order to show cause why a husband should not be punished for contempt in failing to pay alimony and counsel fees it must presumptively appear to the satisfaction of the court that payment cannot be enforced by sequestration proceedings or by resorting to the security, if any be given, as prescribed by statute.</p> <p>An order to show cause why the defendant in an action for a separation should not be punished for contempt for failure to pay alimony and counsel fees is defective where it fails to set forth an adjudication that such payment cannot be enforced by sequestration proceedings, or by resort to the security, if any was given.</p> <p>Where it appears on the motion that defendant gave no security for the payment of alimony and counsel fees directed .to be paid, and the only reference in the moving papers to the ineffectiveness of sequestration proceedings is contained in the affidavit of the plaintiff which merely states that the order for the payment of alimony and counsel fees cannot be enforced by sequestration for the reason that defendant has disposed.of all his property so that plaintiff cannot reach it, the motion will be denied, with leave to renew upon sufficient papers.</p>

Application by the public service commission for the first district for a writ of mandamus, under section 74 of the Public Service Commissions Law, to compel the construction of gas mains and the furnishing of gas service within the defendant’s franchise area. Motion by counsel for the commission for judgment upon the averments of the petition of the commission and the answer of the company thereto. Motion granted and writ of mandamus issued as prayed for.

<p>Specific performance — action for—when decree of, granted — contracts — corporations — estoppel — good-will — meaning of “ actual book value ” — pleading.</p> <p>When a corporation took over the business of a brokerage firm the good-will was entered on the books at a valuation of $200,000, and so carried as an asset until 1911. In 1914 an agreement entered into by all the stockholders provided that in the event of the voluntary or involuntary severance of the connection of any of the parties with the corporation the other parties to the agreement, or such of them as might elect so to do, should have the exclusive option of purchasing all, but not a part, of the holdings of the party whose connection had thus been severed of stocks and bonds in the said corporation as the same might exist at the date of said severance of connection. It was further agreed that the value of the common stock should be figured at the actual book value thereof. In an action for the specific performance of the agreement it appeared that when in .1917 defendant voluntarily severed his connection with the firm he was the owner of certain shares of the common stock of the corporation, that plaintiffs served written notice of election to purchase defendant’s stock, tendered to him a certain sum and demanded said stock which was refused. Held, that the answer, which also asked for specific performance of the agreement, having denied that the sum tendered included the actual book value of the common stock, in that no credit was given on the books of the good-will which as alleged was a valuable asset of the value of $1,500,000, and that defendant was entitled to a stated sum in excess of the amount tendered, and he having done nothing by which he was estopped from claiming his share of the good-will, an interlocutory decree will be entered for the appointment of a referee to take proof as to the value of the good-will, and upon the coming in of his report defendant will be granted a decree of specific performance for the payment of such sum as shall be found is the true book value of his common stock.</p> <p>The meaning of the words “ actual book value ” is the value of all the assets of the corporation, not any arbitrary or fictitious value brought about as the result of some system of bookkeeping.</p>

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

<p>Mandamus — cause for removal of special agent in excise department in doubt — alternative writ granted.</p>