Volume 104 — New York Miscellaneous Reports

<p>Service — of summons by publication — when, by deputy United States marshal not good without the state — motions and orders — attachment— process — Code Civ. Pro. § 443(5), as amended in 1916.</p> <p>A motion to vacate an order for the service of a summons by publication and to vacate the service of the summons and complaint without the state will not be granted on the ground that the complaint does not state a cause of action.</p> <p>Where an attachment against the property of the nonresident defendant granted prior to the order for the publication of the summons was vacated and the attached property sold and conveyed to a stranger to the action before the motion to vacate the order of publication, the facts do not warrant the granting of said motion.</p> <p>Under section 443(5) of the Code of Civil Procedure, as amended in 1916, authorizing the personal service of a summons without the state “ by a United States marshal ” such service made by a deputy United States marshal is not good and upon motion will be vacated.</p>

<p>Lease — covenants contained in — renewal of — contracts—pleading — actions — assignments — evidence — Town Law, § 170.</p> <p>A complaint alleged that in October, 1866, prior to the enactment of the Town Law, the trustees of the freeholders and commonalty of the town of Huntington, the defendant, leased to S. certain -lands of which they were the owners in fee for a term of fifty years at a certain annual rental, with covenant for a renewal for a like term at such rent as might be agreed upon between the parties, and, in the event of disagreement as to the amount of rent, the town would take and pay for all buildings and erections upon the premises at a value to be assessed by parties to be chosen, etc. It was further alleged that the lease was duly assigned to plaintiff and that a part of the premises had been assigned by plaintiff to a third party; that prior to the expiration of the lease on October 1, 1916, the parties considered from time to time the price to be charged for a renewal of the lease but that they had failed to agree' upon the rental value of the premises. Upon overruling a demurrer made upon the ground that the complaint, which was for the enforcement of the covenants, did not state facts sufficient to constitute a cause of action, held, that the part of the covenant relating to a renewal was practically nugatory and conferred no substantial right upon either party but the remaining part of said covenant was in effect an agreement to purchase the improvements and was binding upon the assignee of the lessor and the lessee; that the question whether the action should have been brought against the “ trustees ” and not against the town is not so purely a question, of law that it can be decided upon demurrer without any evidence to sustain the same; that the covenant to take and pay for the improvements creates a charge or lien upon the property enforeible in equity.</p> <p>There is nothing in the Town Law which expressly prohibits the bringing of such an action as the present; the claim sought to be enforced does not seem to come within the scope of the phrase “town charges generally,” nor within the enumerated claims specified in section 170 of the Town Law.</p>

<p>Demurrer to affirmative defenses.</p>

<p>Mandamus—when application for writ of, denied — highways — contracts— statutes — Highway Law, § 132, as amended by Laws of 1918, chap. 413 —. Laws of 1918, chap. 585.</p> <p>Under section 132 of the Highway Law, as amended by chapter 413 of the Laws of 1918, in effect May 1, 1918, the state commissioner of highways is authorized to suspend or defer operations on certain highway contracts upon the request of the contractor and his surety during the war, but not exceeding two years. Chapter 585 of the Laws.of 1918, in effect May 9, 1918, authorizes the state to cancel and annul any contract for the construction of public works if a stipulation is filed by the contractor in the statutory form. Upon an application by relator for a writ of mandamus to compel the cancellation and annulment of a certain uncompleted contract held by him for the construction of a public highway, held, that the legislature by the earlier statute intended to confer a discretion upon the public authorities with respect to public contracts and did not intend that every contract for public work which the state had could be canceled or annulled simply upon the demand of the contractor or his surety and that the respondent having answered that he intends to act under said earlier statute, which he deems to be fair, just and equitable for both parties to the contract, the application for the writ will be denied.</p>

<p>Liens — action to establish, against real property — contracts — title — deeds — dismissal of complaint.</p> <p>Where by contracts to convey certain tenement houses, occupied by tenants, subject to.mortgages which were overdue, it was provided that the rents and interest on mortgages, if any, should be apportioned, and neither at the time the contracts were signed nor subsequently had the mortgages been called, and no action to foreclose either of them had been commenced, neither the fact that between the date of signing the contracts and the date set for the delivery of the deeds the mortgages had been called, nor that the premises or parts thereof were subject to monthly tenancies, is sufficient to relieve the purchaser from her obligation to accept the deeds tendered and complete the contract, and her complaint in an action to establish a lien against the property for the amount paid on the contract and for expenses incurred in examining the title, which was refused, will be dismissed.</p>

<p>Proceedings on application to turn over moneys on deposit in bank to an executor of a deceased administratrix.</p>

<p>Courts -—public service commission is not a court of law.</p> <p>City of Buffalo — charter of, §§ 31, 33 — street railways — public service commission — mandamus — stipulation — special franchises — contracts— change in rate of fare by street car companies.</p> <p>The place to settle questions of law is in a court of law and the public service commission, as a quasi judicial tribunal, is not such a court.</p> <p>Where in 1892 by the so-called “ Milburn Agreement ” the various street car companies operating ears in the city of Buf- ; ■ falo agreed to charge only five cents for transporting a passenger from one point to another in the city and to issue transfers, etc., the action of the common council of said city by the adoption of the resolution of June 18, 1918, by which, on application of petitioner herein, consent was given to a modification of said agreement and of all subsequent franchises so as to make it lawful to charge six cents for a passenger and to allow and to permit the public service commission to inquire into and fix the just and reasonable rate which petitioner should charge for transportation of passengers within the city, disposes of a right of the city within the meaning of section 31 of the city charter.</p> <p>Where the corporation counsel of the city refused to execute a stipulation of discontinuance of a pending proceeding to review the special franchise assessment of petitioner for the year 1916, as provided by said resolution, on the ground that under the provisions of said section 31 of the charter it would not become operative and of force until the expiration of thirty days after its adoption, and it is undisputed that an increase in the rate of fare can only be made pursuant to section 49 of the Public Service Commissions Law, petitioner’s application for a writ of mandamus to compel the corporation counsel to execute said stipulation will be denied.</p> <p>Section 33 of the charter of the city of Buffalo clearly applies to new franchises granted to the city and not to a change in the rate of fare in franchises already existing.</p>

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

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

Appeal by defendant from a judgment entered in (he Municipal Court of the city of New York, b'orough of ' Manhattan, first district, in favor of the plaintiff.

Appeal by defendant-appellant from a judgment entered in the City Court of the city of New York, in favor of plaintiff and from an order denying the motion to set aside the verdict.

<p>Jurisdiction — of Municipal Court of city of New York — husband and wife — actions, — Decedent Estate Law, § 103.</p> <p>Where a wife dies intestate an action against her surviving husband, under section 103 of. the Decedent Estate Law, to recover for an indebtedness incurred by her, is not one in equity to impress a trust or charge upon specific assets, but is an action at law to obtain a money judgment against the défendant because of his failure to take out letters of administration upon her estate, and of such an action the Municipal Court of the city of Mew York has jurisdiction.</p>

<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>

<p>landlord and tenant — covenants contained in lease — when tenant may counterclaim for expenses of heating — evidence — new trial.</p> <p>In an action for rent the tenant may counterclaim and recover the necessary expenses it was put to in heating the premises which the landlord covenanted to do but did not.</p> <p>No tender of the gas and oil stoves used by defendant in heating the premises was essential to its cause of action upon its counterclaim, but, where it was awarded the amount of money expended therefor, a judgment in its favor which left the ownership and possession of the stoves in it necessitates a new trial, its right to recover being- limited to the expense incurred because of the plaintiff’s breach of covenant, i. e., the cost of fuel and the difference between the price paid for the stoves' and their present value as shown by the price realized on a sale thereof, or expert testimony as to their value after being used.</p>

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, after a trial by a judge with a jury.

Appeal by defendant from an order of the Municipal Court of the city of New York, borough of Manhattan, third district, denying defendant’s motion to vacate a judgment.

<p>Demurrer to complaint.</p>

<p>Action- for the construction of a deed of trust.</p>

<p>Transfer tax — motion to reopen a hearing on an appeal from order assessing — records of Surrogate’s Court.</p> <p>Upon a motion made to reopen a hearing on an appeal from an order assessing a transfer tax it is not the duty of the surrogate to examine the records of his court and ascertain whether there is any other proceeding in the same estate in which documents filed might have a bearing upon the question before him, nor is it his duty to. consider them in arriving at a conclusion, where such documents were neither before the appraiser in the proceedings to fix the tax nor presented to the court on the hearing of the appeal.</p>

<p>Wills — execution of — recital contained in — when not entitled to probate.</p> <p>Where decedent, by a paper written by himself in Holland in September, 1914, and duly executed before witnesses, recites that "If any misfortune should happen to me and our boy” on the way to New York and “if we both should lose our life in this critical time of European war,” gave all of his estate to his wife, the gift is conditional, dependent not only upon the death of the decedent during the proposed voyage but upon the death also of his son, and where decedent is survived by his wife and two sons, one of whom was with him when the will was made, the paper is not entitled to probate.</p>

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

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

<p>Proceeding upon the settlement of the accounts of executors.</p>

<p>Wills — life beneficiary not entitled to arrears of income from principal — trustees.</p> <p>Where the beneficiary for life of income dies without having received all the income directed to be paid to her by the will because of the acts of the defaulting trustee, and none of such income is in the hands of the successor trustee, a claim of the legal representatives of said beneficiary that the arrears of income should be paid to them from the principal of the trust fund cannot be allowed.</p>

<p>Trial — in action to contest will — findings of jury — evidence.</p> <p>Where a jury found that a will was duly executed and, by direction of the court with the acquiescence of the contestant, also found that the testator had testamentary capacity, with a further finding by the jury that a gift to the proponent of the remainder of the estate was the result of fraud or undue influence, a motion for a new trial on the ground that the verdict as to the last finding was against the weight of evidence will be granted, unless the court determines that the issue solely as to the residuary clause cannot be tried.</p>

<p>Actiok to recover damages for personal injuries.</p>

<p>Action for the dissolution of a partnership.</p>

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

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

<p>Mandamus. — when writ of, granted — municipal civil service commission.</p> <p>Where a municipal civil service commission has promulgated a list of eligibles for promotion it has no power to annul such action.</p> <p>That upon an examination held under the direction of a municipal civil service commission, for promotion from .the position of nurse to that of supervising nurse, acting supervising nurses were permitted to rate themselves and other nurses as to previous experience, did not justify a revocation of the list of eligibles promulgated after said examination, where the commission before promulgating the list refused to cancel the examination on such ground, it appearing that said ratings, which were merely tentative, were subsequently reviewed by three separate bodies.</p> <p>The fact that several nurses at the top of the list voluntarily waived their precedence in favor of an acting supervising nurse so that she might retain her position could not have the effect of annulling the list previously established.</p> <p>A division of the list into two classes, one relating to child hygiene, the other to preventable diseases, with the result that a nurse far down the general list might nevertheless have a higher rating in one division and thus receive an appointment in advance of a nurse outranking her on the general list, finds neither warrant in any statute nor in the commission’s own regulations.</p> <p>It being clear that relief could not be afforded to relator, a trained nurse in the child hygiene division in the department of health, and that confusion would result if the cancellation were revoked as to her only and permitted to stand as to the eligibles, the writ will be granted in behalf of relator and all others similarly situated.</p>

Motion by the plaintiff company for such a modification of an order granting it a temporary injunction pending the' determination of the constitutionality of a legislative act fixing the maximum rate chargeable by the plaintiff company for gas as will permit it to withdraw without condition and use for the purpose of its business $265,000 collected from consumers and deposited with the Empire Trust Company to await the outcome of the action. Motion granted on conditions.

<p>Contracts—for improvement of highways—"bonds—when surety not liable for wages of employees of contractor.</p> <p>Where upon the making of a contract' for the improvement of a state highway the contractor gave a surety company’s bond “to and for the benefit of the People of the State of New York,” the surety is not liable to a laborer for the amount due him from the contractor for wages earned in carrying out the . contract.</p>

<p>Constitutional law — statutes —■ water and water courses — lands under water — navigable waters — injunctions — Barge canal — Laws of 1882, chap. 406; Laws of 1900, chap. 683; Laws of 1909, chap. 273, § 4-</p> <p>The title to the bed of the Hudson river at Meehanieville is in the state.</p> <p>A statute (Laws of 1882, chap. 406), by which plaintiff’s predecessor was authorized to construct a dam across the Hudson river at Meehanieville “ on their own lands ” in such manner as not to affect injuriously the water privilege at Stillwater village, etc., not having been passed by the vote required for a conveyance of state property, gave a mere license or privilege' to erect the dam, subject to public navigation rights and the reserved right of the state to improve the navigation of the river and to prevent and remove obstructions therein.</p> <p>A statute (Laws of 1900, chap. 683), which received the votes necessary for a conveyance of state property by its title, referred only to the subject of legalizing and maintaining the then existing dam erected pursuant- to the statute of 1882, while the body of the later act in addition to such legalization authorized plaintiff’s predecessor to forever maintain the dam and to flood back up the river so far as plaintiff’s predecessor then owned adjacent uplands, or had rights of flowage thereon, for the purpose of maintaining the pond formed thereby, and granted any interest of the state in lands under water of the river covered by the dam and the buildings and plant of plaintiff’s predecessor connected therewith. Held, that the statute of 1900 was in violation of article 3, section 16, of the Constitution, which provides that no private or local bill shall embrace more than one subject to be expressed in the title, and was also void as, an attempt to alienate the sovereign right of the state to improve the navigation of the river.</p> <p>The route of the Barge canal under the statute is in the bed of the river and through the dam. Before the plan for the work was made plaintiff raised the crest of the dam to elevation 67.5 and the state engineer adopted such elevation as a basis for the locks and other structures and a contract for the work which was designed as and was an improvement of the river for navigation was approved by the canal board. On the date that such work was practically completed plaintiff put flash boards on the dam and raised its elevation to 70.0 at which elevation the locks cannot be operated except during low flows and cannot be operated at all 'with a flow near or at the maximum navigable stage, nor were they designed to withstand the pressure at that elevation. In an action brought to restrain any interference with the dam and the flash boards thereon, held, that said dam, including the flash boards as forming part of it, was not a “ structure ” within the meaning of section 4 of chapter 273 of the Laws of 1909, requiring appropriation and compensation therefor.</p> <p>That the flash boards were not authorized and the dam to that extent at least was an unlawful structure, which, if not removed, would have impeded and obstructed navigation, and plaintiff having refused, after demand, to remove them, defendants were warranted in removing them as unlawful.</p>

<p>Demurrer to one of the defenses set forth as a counterclaim.</p>

Petition by certain taxpayers for an order directing the resubmission of the four excise questions specified in section 13 of the Liquor Tax Law to the electors of the town of Byron.

<p>Claim for reimbursement of the amount paid for taxes and assessments upon state lands purchased at public sale.</p>

<p>Transfer tax — additional tax on investments in certain cases unconstitutional— personal property — Tax Law, § 221-b, added by Laws 1917, chap. 700.</p> <p>A transfer tax being not on property but on the right of succession, section 221-b of the Tax Law, added by chapter 700 of the Laws of 1917, which provides for an additional tax on investments in certain eases, means that the right of an individual or corporation to succeed a decedent to the possession of unstamped securities shall be taxed at the rate of five percent on their value in addition to the tax already imposed by other provisions of law relating to the tax on transfers; said section would thus vary the rate of tax imposed, depending upon whether the decedent in his lifetime, and prior to the accrual of the right of succession, had paid taxes on his personal property or had affixed stamps to the securities, and would constitute a discrimination and not a classification; said section is, therefore, repugnant to the Constitution of the state in that it deprives of their property without due process of law those particular individuals who succeed to the possession of the property of the particular individuals who have not stamped their securities or paid a personal tax.</p>

<p>Trust — death of sole trustee — when administratrix of deceased trustee not liable to account to remaindermen — appointment of substituted trustee.</p> <p>Where the cestui que trust of an unexecuted trust created by deed survived the trustee and no substituted trustee was appointed, the only person having a right to demand the corpus of the- trust fund from the administratrix of the estate of the deceased trustee is a substituted trustee appointed by the Supreme Court to execute the trust.</p> <p>One interested in the corpus of the trust fund is not “ a person interested in the estate ” of the deceased trustee and his application upon the death of the cestui que trust to compel the administratrix of the deceased trustee to account for the corpus of the trust fund will be denied.</p>

<p>Deeds—when not entitled to be recorded — conveyances — real property.</p> <p>A deed of conveyance duly acknowledged by but three of the four grantors is not entitled to be recorded.</p>

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

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

<p>Certiorari—writ of, to review action of state tax commissioners, in assessing special franchises — evidence — waiver.</p> <p>Where the state tax commissioners in their notice of assessment of relator’s special franchise of maintaining and operating its railroad across various streets and highways in the boroughs of Brooklyn and Queens did not give a separate assessment for each crossing but bunched the crossings together in larger or smaller groups, assessing a certain sum as the value of each group, and did not advise relator how much was assessed for tangible and how much for the intangible- privilege of using the crossings, the commissioners cannot be heard to object that the protest or complaint of relator on grievance day is equally general, and relator, assuming that in general the law requires particular facts to be presented, had a sufficient excuse for not presenting them in order to sustain its charge of overvaluation.</p> <p>Upon certiorari to review the action of the state commission in assessing such special franchises the relator is entitled to have considered evidence offered as to overvaluation and inequality.</p> <p>That the state board of tax commissioners did not before filing returns move to quash the writ of certiorari is a waiver of any defect in the petitions.</p>

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

Action to foreclose mechanic’s lien. Plaintiff was a subcontractor for mason work under defendant Rapp, the contractor for the construction of a .paper mill for the defendant Flower City Tissue Mills Company. Plaintiff claims that the contractor represented that the excavation would consist of earth and gravel and the owner claims that plaintiff failed to make the walls watertight and asks for damages.

<p>Election — waiver of — mortgages.</p> <p>Where a mortgagee upon a default in a mortgage elects to declare the entire mortgage due and thereafter waives his election, he cannot thereafter revive such election.</p>

<p>Motion for a new trial on the judge’s minutes.</p>

<p>Action for specific performance of contract.</p>

<p>Partition — who may maintain action for — real property.</p> <p>Wills — express trust — imperative power of sale — delay in exercising power of sale does not terminate trust — Real Property Law, § zoo.</p> <p>To entitle one to maintain an action for the partition of real estate he must be the owner of an interest therein; he must have title to a part thereof.</p> <p>Where a testamentary trust provides for a sale of real estate within five years of the death of the husband of testatrix, to whom the use, rents, interest and income of the entire estate is given for life, such sale to be made by the executors for the benefit of the children of testatrix, and the executors are vested with power to rent the real estate, collect the rents and pay therefrom to the husband sufficient moneys to provide him comfortable support and maintenance, the power of sale is imperative in order to provide funds with which to pay a legacy to one child and divide the residue of the estate among the children of testatrix equally, as directed by the will.</p> <p>Such provisions create and constitute an express trust, and by section 100 of the Real Property Law the legal estate vests in the executors, as trustees of an express trust, and a sale of the real estate during the lifetime of the husband 'would be in contravention of the trust and void.</p> <p>The sale of the real estate being necessary under the will, the failure of the trustees for more than twenty years to exercise the power of sale or to perform the duties of the trust and to provide moneys to be paid to the heirs of a son of testatrix who died five years after her did not result in a termination of the trust.</p> <p>A conveyance of the real estate in which the husband joined being void the title still remains in the trustees, and an heir at law of the deceased son of testatrix has not such a title to the real estate as will permit him to maintain an action for partition, and his complaint will be dismissed,-with costs.</p>

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

<p>Actions — equitable—'Who are proper parties — joinder — pleading — nuisance—'executors and administrators.</p> <p>There is no rule of law which forbids the joinder in an equitable action of the executrix of one who has been damaged by the acts of the defendant and the same person in her individual capacity when she has been injured by a continuance of the acts complained of, where the purpose of such joinder is to prevent a multiplicity of suits and the complete determination of the matters in controversy.</p> <p>A complaint by plaintiff individually and as executrix of her deceased husband, of whose estate she was the sole beneficiary, alleging that the defendant village in the lifetime of plaintiff’s husband had constructed and has since maintained a sewer upon premises above those of plaintiff on a stream of pure and wholesome water into which defendant discharged the sewage in close proximity to plaintiff’s residence during the ownership of both her husband and of herself, giving rise to noxious odors, gasses,' etc., constituting a nuisance; that plaintiff, and her husband during his lifetime, suffered, and plaintiff still suffers, great inconvenience and damage by reason of said nuisance and that the premises have thus been rendered of little or no value, etc., is not subject to a demurrer on the ground that causes of action have been improperly united in that no alleged cause of action stated as residing in plaintiff in her individual capacity can be joined with any alleged cause of action in her representative capacity.</p> <p>A right of action to recover for the injury to the rental value while plaintiff’s husband was the- owner of the fee accrued to him upon the happening of the injury; such right of action was a personal asset which passed to her as executrix and did not vest in her individually until the settlement- of .the estate.</p> <p>A right to recover for the injury done to the property during the lifetime of the husband passed to plaintiff as his executrix who takes individually only what remains after the settlement of the debts of decedent and the judicial settlement of her accounts as executrix, until which time she is entitled to receive the damages sustained during the lifetime of her testator and to enforce payment thereof by action, if necessary, as a part of his estate.</p> <p>As owner of the fee of the premises plaintiff is clearly a necessary and proper party to the present action for injunctive relief and for such damages as she may have suffered since the premises passed to her ownership.</p>

<p>Claim for damages for cutting off and diverting all the waters of a stream which arose or flowed from the territory southerly of the barge canal channel, in the town of Verona, Oneida county.</p>

<p>Negligence — of state proximate cause of death of decedent — damages — canals.</p> <p>The duty of the state to furnish a lock tender on one of its canals a reasonably safe place in which to work may not be delegated.</p> <p>A man seventy-nine years of age, without previous experience as a lock tender, entered the employ of the state in that capacity at junction lock No. 14 of the Champlain canal at Port Edward, NT. Y., and on the night of the sixth day of his service, while opening the westerly gate and pushing the gate beam over the stairway, across the top of which, for passage, were planks laid loosely side by side, he fell to the bottom of the stairway sustaining injuries which resulted in his death within a month. Upon the hearing of a claim for damages it appeared that the distance from the top of the stairway to the inside of the plank horizontally was six feet and from the plank to the bottom of the stairway vertically was also six feet and except for the planks the stairway top was entirely open. It further appeared that at the time of the accident a lamp post stood near the stairway and planks but the state’s employees had omitted to furnish any lamp for it. Held, that the negligence of the state was the proximate cause of the death of decedent and the claim is allowed at $500.</p> <p>That though the lock was designed for the installation of a power system of operation the state should have required the stairway to be closed so long as manual operation of the gates was continued, or should have provided a proper and protected passageway across it.</p>

<p>Damages — to crops "by flood — when claim for, dismissed — trespass — jurisdiction — Laws 1915, chap. 640, amended by Laws 1916, chap. 420.</p> <p>The statute (Laws of 1915, chap. 640, as amended by chapter 420, Laws of 1916), conferring jurisdiction upon the Court of Claims of any claim theretofore accrued and filed as required by said statute “ for compensation or damages for or on account of the appropriation or use by the state of any lands * *</p> <p>or other property” was not intended to include claims for damages with which the appropriation or use of lands, etc., by the state is merely incidental, or remotely concerned or connected; to come within the remedial provisions of the statute the damage to the claimant must be the proximate, physical and direct result of the appropriation or use by the state of land, etc., of the claimant.</p> <p>Where the owner of a farm through which passed the proposed route of the barge canal has been paid an award for the permanent appropriation of a portion of said farm, and where, ■ as a result of the use by the state of its own property and confined thereto, water was caused to flood certain of the land remaining to the owner of said farm, a claim for damages to crops by one working the farm on equal one-half shares must be dismissed.</p> <p>The unauthorized acts of the employees of the state which resulted in such damage, and for which there was no statutory provision for compensation, were but the trespasses of the individuals who committed them, and the state is not responsible therefor.</p>

<p>Contracts — substantial performance — when claimant entitled to recover — assignments — highways — Laws 1909, chap. 30.</p> <p>A contract for the improvement of a state highway having been made with the commissioner of highways as authorized by chapter 30 of the Laws of Í909, the contractor made an assignment of all sums due or to grow due thereunder to claimant, with power to collect and sue for them in its name. All work done under the contract was done by claimant and various later assignments of funds due or to accrue under the contract were made by the contractor to claimant and others. Upon the completion of the work the engineer in charge having reported the road for acceptance to his superior, he, the division engineer and the county engineer examined the road for final inspection and as a result presented .a.list of items of work to be done by the contractor. Several months later another inspection was made as a result of which the contractor was directed by the engineer in charge to complete certain other items of work as a condition to acceptance and' to do certain, work not necessitated by any fault of the contractor but due to an error in the original plan. Upon the hearing of a claim to recover the amount alleged to be due, held, that claimant having substantially performed the contract is entitled to recover, except as to certain items for extra work. not within the original contract.</p>

Application of the corporation counsel of the city of New York, through an order to show cause, for a writ of prohibition against the public service commission for the first district and the Newtown Gas Company.

<p>Application for an injunction and mandamus.</p>

<p>Consent—by owner of real property to construction of elevated railroad in front of premises is a “ conveyance ” and must be recorded in order to bind subsequent purchasers — injunctions — title — statutes—’pleading — Beal Property Law, § 290 — Code Civ. Pro. § 522.</p> <p>A consent executed by an owner of real property to the construction, maintenance and operation of an elevated railroad in front of her premises is a “ conveyance ” within the meaning of section 290 of the Real Property Law and must be recorded in order to bind subsequent bona fide purchasers of the property.</p> <p>The plaintiff in an action to enjoin the maintenance and operation of defendant’s railroad in front of her premises is not bound by a consent to such railroad executed by her predecessor in title but not recorded until her deed was recorded, she having paid a-valuable consideration for the premises and having no knowledge of such consent until long after she had acquired title.</p> <p>At the time plaintiff acquired title to her property there was on file in the proper county clerk’s office a certificate issued by the public service commission to the defendant containing a description of the route of the proposed railroad and providing, among other things, 'for the obtaining of the consents of the owners of one-half in value of the property bounded on the streets through which the railroad was to be constructed. Held, that in the absence of a statute making said certificate constructive notice of its contents it was insufficient to put plaintiff on inquiry as to whether her grantor had given such consent.</p> <p>The fact of such consent was purely a matter of defense, and allegations of the complaint anticipating such a defense, not being inconsistent with plaintiff’s claim on the trial that she was not bound by the consent because of the failure to record it nor with the evidence given in support of such claim, may be treated as surplusage.</p> <p>The consent having been pleaded as a part of the affirmative defense, the allegations thereof, no reply having been required, are deemed controverted under section 522 of the Code of Civil Procedure, and any evidence to show that the consent was not binding on plaintiff was available to her.</p> <p>While the allegations of the complaint, plaintiff’s conduct on the trial and her attempt to secure the revocation of the consent by signing a revocation and by procuring one from her grantor might be admissions that the consent was given, they did not, in the absence of facts constituting an estoppel, admit its validity or legal effect.</p> <p>An attempt to revoke an act cannot be regarded as an admission of its validity or binding effect.</p>

<p>Easements — granted public service corporation upon certain conditions — corporation not permitted to. repudiate conditions — contracts — electric light companies. Injunctions — pendente lite — when granted — undertakings.</p> <p>A public service corporation which has accepted and enjoyed the benefit of an exclusive right or easement over private property in aid of a franchise granted upon condition that it would render a certain service at a certain rate of compensation for a definite period of time will not be permitted to repudiate the condition and still claim the benefit of the property rights, easements and franchise so granted.</p> <p>Where the agreement, pursuant to which defendant, an electric lighting company, was granted an exclusive franchise to use the streets of a municipality, creates an easement in perpetuity over private property and provides inter alia that it is made subject to certain conditions and provisions which are stated’ to be of the essence of the grant, one of which is that the cost to any and all private consumers shall not be in excess of fifteen cents per kilowatt hour, the defendant cannot increase the rate at which it will supply electric light to such customers within the territory referred to in the contract over the maximum rate specified therein even if the advance in such rate he authorized and approved by the public service commission.</p> <p>In an action to restrain defendant from demanding or collecting more than the contract rate plaintiffs will be granted an injunction pendente lite upon condition that they, other than the municipality, furnish an undertaldng in the sum of $3,000, in the usual form to be approved by a justice of this court.</p>

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

<p>Taxes — deduction of, under revenue act of September 8, 1916 — legacy — executors and administrators.</p> <p>The tax to which an estate is subject under the revenue act of September 8, 1916, should be deducted proportionately from each legacy; the amount to be deducted is that proportion of the entire tax assessed against the estate which an individual legacy bears to the entire net estate.</p> <p>The “ net ” estate to be used in computing the proportion of the tax to be paid by a legatee is not the net estate as defined by section 203 of said revenue act but the net estate as ascertained under the laws of this state by deducting funeral expenses, administration expenses and debts from the gross value of the estate.</p> <p>The tax under said revenue act being imposed upon the estate and not upon the interest of individual legatees, the executors should adopt the same rule in ascertaining the amount of tax to be deducted from a trust fund held for life beneficiaries.</p>

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

<p>Alien enemies, — insurance companies — Trading with the Enemy Act of October 6, 1917, construed.</p> <p>The prosecution and the maintenance of suits by an alien enemy insurance company, so far as the same arise solely out of the business transacted within the United States under a license issued pursuant to the “ Trading with the Enemy Act of October 6, 1917,” will be construed as permitting such a corporation, when in liquidation, to proceed with actions designed to bring in assets growing out of its business transactions within the United States prior to the issuance of such a license.</p>

<p>Motion to vacate an order for defendant’s examination before trial.</p>

<p>Accounting — testamentary trustees — wills—'investment in “Liberty Loan bonds ” justified — other investments.</p> <p>Where it appears by the general scheme of testator’s will that he intended his son should receive not more than $2,000 a year for his support, maintenance and education during his minority, and that he should receive the entire income of the estate including whatever had not been expended of the $2,000 yearly when he attained majority, and thereafter all the income until he reached the age of thirty-five years provided none of the contingencies mentioned in the paragraph of the will relating to the $2,000 occurred, an objection by the special guardian for the son, on the accounting of the testamentary trustees, that they had invested and retained all of the income of the estate over and above the $2,000 a year, and the same not having been bequeathed by the will should have been paid to the son who was entitled to the next eventual estate, or to his testamentary guardian, will be overruled, as the general scheme of the will being consistent with the rules of law it was the duty of the court to effect the main purpose of testator.</p> <p>Where the trustees were directed to invest and reinvest the funds of the estate and keep them invested in “ such bonds issued by railroad corporations in the United States of America as return an income of not less than four per cent, per annum at the time of the investment,” such direction is mandatory.</p> <p>Where the account shows that investments in railroad bonds returned an income of more than four per cent per annum at the time of investment, an objection by the special guardian that the trustees should not be credited with losses on such transactions will be overruled.</p> <p>An investment in New York city bonds being unauthorized under the will, an objection by the special guardian that the trustees should not be credited with losses on such investment will be sustained and the account surcharged.</p> <p>An investment in the First Liberty Loan bonds held to have been justified, and an objection of the special guardian thereto overruled.</p>

<p>Habeas corpus proceeding.</p>

Claim for damages arising from the destruction of crops, road, bridge and farm premises caused by flooding the waters of the barge canal across claimants’ farm in the eastern part of Monroe county.

<p>Highways — duty of state to protect automobile travel in night-time —- damages ■— negligence.</p> <p>It is the duty of the state to protect the traveling public on its patrol system highways from dangers likely to arise from peculiar conditions surrounding a curve in a. highway which make it an extremely dangerous place for automobiles in the night-time.</p> <p>The question of the dangerous condition of any particular place in a highway must -be answered in view of what may be expected from an ordinary driver under ordinary conditions in the use of the highway at that place.</p> <p>Claimant’s intestate, while driving his automobile in the night-time at from ten to fifteen miles an hour south along a highway under the state patrol system which was also a trunk highway leading into Pennsylvania where he had his home and to which he was returning, encountered a heavy fog, and having passed through a small hamlet instead of taking the curve to the left around a knoll known as “ dug hill ” he proceeded straight ahead and his car, in going over a retaining wall which was just beyond the outside curve of the road, turned turtle, fell on and killed him. The court on inspecting the curve at “ dug hill ” found it extremely dangerous for night driving when approaching from the north, and the evidence disclosed that this was not the first fatal accident at said curve. Held, that it was the duty of the state to provide some method to protect the ordinary auto traveler in the night-time, and that claimant was entitled to an award, as, had a suitable barrier been placed by the state at the curve, the accident might not have happened.</p> <p>That being in the country with no facilities for putting up for the night the deceased was justified in proceeding through the fog on his way home and in the circumstances was using proper care.</p>

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

<p>Demurrer to defense.</p>

<p>Foreclosure — default in payment of taxes — leave granted to serve supplemental complaint pleading subsequent default in payment of interest.</p> <p>Where a complaint in foreclosure sets forth a default in the payment of taxes on the mortgaged property and alleges that pursuant to the terms of the mortgage the plaintiff elects to consider the principal immediately due and payable, he will be granted leave to serve a supplemental complaint pleading a subsequent default in the payment of interest which also gives him the right to declare the principal due.</p>

<p>Condemnation proceedings — when report of commissioners making awards will be sent back to other commissions for new trial — damages.</p> <p>The report of • the commissioners making awards to the owners of properties located on Esopus creek below the Ashokan dam, and which had been damaged by the diversion of water above each of said properties, considered, and the claims sent back to other commissions for a new trial.</p>

<p>Summary proceeding for the purpose of' ousting defendant as a squatter on property of plaintiff.</p>

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

<p>Covenants — against incumbrances ■—deeds.</p> <p>Corporations — dissolution of — action against corporation for breach of covenant against incumbrances cannot be maintained ■— liens — General Corporation Law, § 221(3).</p> <p>Until a grantee sustains damage through ouster or by payment made to procure the discharge of an incumbrance, nó debt or claim arises in his favor against the grantor under the latter’s covenant against incumbrances.</p> <p>The provision of section 221(3) of the General Corporation Law, that a corporation, after dissolution, shall continue to exist for the purpose of paying, satisfying and discharging any “existing debts or obligations” and may sue.and be sued for the purpose of enforcing them “ until its business and affairs are fully adjusted and wound up,” clearly applies only to debts or obligations “ existing ” at the time of dissolution.</p> <p>At the time of the conveyance by a corporation of lands free from all incumbrances they were subject to the lien of a lease given by the grantor. Subsequently, in proceedings taken under section 57 of the Stock Corporation Law then in force, the corporation was duly dissolved and all of its assets were applied in discharge of its then existing debts and obligations leaving no balance available to the stockholders. Held, that the grantee could not maintain an action against its grantor to recover the amount it was thereafter obliged to pay the. lessee to extinguish the lien of its lease, and a verdict in favor of plaintiff will be set aside and a verdict directed in favor of defendant.</p>

Petition for the registration of the title to lands in the county of New York under the Land Title Registration Act (Real Prop. Law, §§ 370-435), as amended by chapter 572 of the Laws of 1918.

<p>Lands under water — grant of — abutting owners — easements — navigable waters — town of Oyster Bay has right to enter upon filled-in land below high-water mark and erect bath-houses and other improvements for benefit of public.</p> <p>An owner of lands abutting on Cold Spring Harbor obtained from the commissioners of the land office a grant of land below high-water mark in front of his premises for the purpose of beneficial enjoyment. After he had erected a series of concrete walls running from his upland into the waters of said harbor it was judicially determined that he acquired no right under the state grant because the title to the lands below high-water mark was vested in the town of Oyster Bay under the Andros patent of 1677. Held, that so long as his easement of access to the navigable waters was not destroyed or unreasonably interfered with the town had the right to enter upon the filled-in land and erect bath-houses and other improvements for the benefit of the public.</p> <p>The right of the public to use the foreshore for fishing, bathing, boating and passage carries with it the right to make improvements calculated to render such public rights more available.</p> <p>The shore owner is not entitled to have the upland remain in actual contact with the water through the entire length of his original line, and the filling in of a portion of the foreshore is not an invasion of his rights where a foreshore sufficient in extent to enable him to exercise his easement of access remains in its natural condition.</p> <p>The fact that the owner himself created the filled-in land does not enlarge his rights so as to give him the right to restore the land to its original condition by removing the fill.</p>

Action for a permanent injunction to enjoin acts of violence by certain labor unions, their officers and agents. Trial by court without a jury.

<p>Motion for the direction of a verdict.</p>

<p>Action to declare receiver’s certificates liens prior to certain judgments and for other equitable relief.</p>

<p>Wills — construction of, in order to ascertain meaning — construction adopted which will avoid intestacy.</p> <p>A part of a will should not be considered separate and independent of the rest of the will in order to ascertain its meaning, but the whole will should be scanned in order that the testator’s intent as to any specific provision may be properly ascertained.</p> <p>Where a will is open, to two possible constructions that one should be adopted which will avoid intestacy, as it is fair to assume that the testator purposes to dispose of his whole estate unless from the language of the will the contrary clearly appears.</p> <p>The will in question considered, and held, that testator had effectually disposed of his entire estate.</p>

<p>Proceeding to determine the residence of decedent.</p>

<p>Transfer tax'—the amount of a mortgage upon real property without the state cannot he deducted from the personal estate within this state.</p> <p>Where a decedent who died a resident of the state of New York specifically devised to his wife certain real property in the city of Washington, D. C., it is erroneous in a transfer tax proceeding to allow as a deduction against the personal estate of the decedent in this state the amount of a mortgage which was a lien upon said property at the date of the death of testator.</p>

<p>Wills — probate — right of assignee of next of kin to contest — general principles relating to probate proceedings discussed.</p> <p>Where the only heirs at law and next of Mn of a testatrix were a nephew and a niece, and the latter by an instrument in writing executed before the death of testatrix assigned to a nephew, his executors, administrators and assigns, certain moneys and other property, real or personal, to which she then was or might become entitled by reason of any or all of her rights, interests or claims in and to any of the estates or properties mentioned in said assignment, and the assignee executes a deed by which he transferred in trust all the property referred to and covered by said assignment to him, to invest and reinvest the same for the benefit of himself and wife during their joint lives, he has such a sufficiently distinct interest under the assignment as entitles him to contest the probate of the will, though the trustee under the deed of- trust files no objection thereto. ■</p> <p>The general principles, statutes and judicial decisions regulating parties to probate proceedings, reviewed and discussed.</p>

<p>Appeal by the landlord from a final order in summary proceedings in the Municipal Court of the city of New York, borough of Manhattan, fifth district, in favor of the landlord-appellant and allowing tenant-respondent’s counterclaim.</p>

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

<p>Appeal by the landlord from a final order of the Municipal Court of the city of New York, borough of the Bronx, second district, in favor of tenants.</p>

<p>Corporations — when one foreign corporation may maintain action in tort against another—Code Civ. Pro. § 1780(4).</p> <p>Attachment — when motion to vacate a warrant of, will he denied — damages — pleading — affidavits — corporations.</p> <p>Under section 1780 (4) of the Code of Civil Procedure a foreign corporation may maintain an action in tort against a foreign corporation doing business in this state.</p> <p>Where the complaint in an action brought by a foreign corporation against another foreign corporation doing business within this state and other defendants to recover damages alleged to have been sustained by plaintiff through the wrongful acts, fraud and conspiracy of the defendants in that they converted and injured plaintiff’s property, certain corporate stock, alleged that many of said acts were committed within the state of New York, a motion to vacate a warrant of attachment on the ground that the complaint did not state fadts sufficient to constitute a cause of action will be denied.</p> <p>Where a defendant presents no affidavit in support of its motion to vacate an attachment the plaintiff is entitled to the benefit of all legitimate inferences to be drawn from the facts alleged in the complaint.</p>

<p>Action for the annulment of a marriage.</p>

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

<p>Wills — intention of testator — construction and interpretation of — residuary estates — vested remainders, — accounting by trustee.</p> <p>The rules which govern in the construction and interpretation of wills, in so far as vesting is concerned, are always applied in subordination to testator’s ascertained intention, if it clearly is deducible from the whole will. ■</p> <p>Where testator devised and bequeathed his residuary estate to his executors in trust to pay a certain portion of the income to his wife annually for life and to pay the balance to his five children nominatim during their mother’s lifetime, and at her death to divide the principal among said children and the issue of any deceased child, with direction for payments on account to children in anticipation of their share, they took vested remainders subject to being devested only in case a child died before testator’s widow, leaving issue, and the grandchildren of testator are interested and proper parties to an accounting by the trustee.</p> <p>The income and share of a child of testator, who died without issue, vested in him indefensibly and should be paid to his executors.</p>

<p>Application" for letters of temporary administration.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, entered upon verdict of a jury.

<p>Replevin — dismissal without prejudice — no adjudication as to ownership— action upon bond.</p> <p>New trial — motion for, on ground of newly-discovered evidence — when denial of motion is error — replevin — trial</p> <p>Where an action in replevin is dismissed without prejudice for lack of proof on the part of plaintiff, there is no adjudication upon the merits as to the ownership of the chattels^in question, and when because of the failure of plaintiff to successfully prosecute the action the - surety is sued upon its bond it is entitled to show that the plaintiff in replevin was in fact entitled to the possession of the property taken by him and that, therefore, the defendant in replevin suffered no substantial damage by such talcing.</p> <p>Where, in the action upon the bond in replevin, defendant’s motion for a new trial upon the ground of newly-discovered evidence is denied and defendant alleges that the property sought to he recovered, two pianos, were placed with plaintiff upon trial with a view to his purchasing them if satisfactory, but that plaintiff found them unsatisfactory and did not purchase or pay anything for them but refused to return them, and it further appears that such evidence is to be furnished by B who swears he was engaged in distributing and selling the products of the plaintiff in replevin acting as its representative, it is clear that defendant in the present action should succeed upon the merits and it was error to deny the motion for a new trial absolutely.</p> <p>Where from the moving papers it does not appear how B expects to prove his statement that no payments have been made by the plaintiff in the present action for pianos and it does not appear what standing B had with the plaintiff in the replevin action or that his testimony is essential to complete the proof on this point which was lacking upon the trial in the replevin action, and it does not affirmatively appear that his testimony could not have been obtained by the exercise of due diligence upon the trial of the present action, the denial of the motion for a new trial should have been without prejudice to a motion to renew upon proper proof, and as so modified the order denying the motion for a new trial will be affirmed.</p>

Appeal by defendant from order of the Municipal Court of the city of New York, borough of Manhattan, third district, denying a motion to set aside an inquest and vacate a judgment.

Appeal by plaintiff from a judgment of the Municipal Court of the City of Mew York, borough of Manhattan, first district, in favor of defendant, dismissing the complaint for failure of proof, after a trial before the court without a jury.

Appeal by the plaintiff from an order of the City Court of the City of New York cancelling and discharging of record a judgment recovered by plaintiff against defendant, such motion to cancel and discharge being made by reason of defendant’s discharge in bankruptcy.

<p>Title — unmarketability of — rejection of, because of defects not excepted in policy of insurance — contracts — judgments — damages — appeal. •</p> <p>Plaintiffs contracted for the sale of two certain lots for $1,500, but on the closing day the purchaser rejected the title because of defects not excepted in plaintiffs’ title insurance policy by which the insurer agreed to keep harmless and indemnify the insured “ against all loss or damage not exceeding $3,000 which the said assured shall sustain by reason of defects or unmarketability of the title of the assured ” or “ because of liens or incumbrances charging the same ” at the date of the policy, which was delivered more than six years prior to the making of the contract of sale. The plaintiffs complied with all the conditions of the policy and as required thereby gave notice to the insurer of the rejection of the title, which at the mating of the contract of sale was defective in that one of the two lots was subject to an outstanding undivided two-thirty-fifths interest. Before the commencement of an action on the policy the insurer obtained for plaintiffs such outstanding interest which was subject to the lien of a judgment for $576.64. Upon the facts the trial justice held that, as plaintiffs had lost the benefit of the sale, the amount of their damage was the agreed purchase price, to wit, $1,500, and gave judgment for that sum, with interest from the date of the contract of sale. Held, upon reversing the judgment and ordering a new trial, that plaintiffs are entitled to recover only the actual loss suffered by them by reason of the lien of the judgment which at most would be the difference between the value of the property as incumbered and the price which they could have secured for it if it had been unincumbered.</p>

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

<p>Motion to confirm report of commissioners in condemnation proceedings.</p>

<p>New trial — when ordered in County Courts.</p> <p>Code of Criminal Procedure, § 768 —criminal law — when alternative writ of prohibition granted — appeal.</p> <p>Under section 768 of the Code of Criminal Procedure, as - amended in 1915, the County Court, upon reversing a judgment of a Court of Special Sessions convicting defendant of petit ■ larceny, has no discretionary power to order a new trial before the court where the conviction was had, but the new trial, if .ordered, must be had in the County Court.</p> <p>Where, after the judgment of conviction had been reversed and a new trial ordered, the justice of the peace, who had convicted relator, by telephone commanded him to appear for trial on the original warrant, relator pending an adjournment of the proceedings before said justice will be granted an alternative writ of prohibition commanding him to-desist and refrain from any and all further proceedings on the information and warrant and from proceeding with the trial of relator thereon.</p>

<p>Motion to confirm report of referee in action to annul marriage.</p>

This is a demurrer by the plaintiff to certain defenses of the defendant. The action is one in equity to declare an attorney’s lien prior to an alleged creditors ’ lien upon the proceeds of the sale of the real estate of a decedent. John Phelps, the decedent, died intestate,' October 19, 1904, leaving insufficient personal property to satisfy the claims of his creditors. He had conveyed certain real estate to the defendants Hassan and Hamilton.

<p>Motion by defendant for a new trial after a verdict for the plaintiff.</p>

<p>Determination as to executor’s commissions.</p>

<p>Wills — demonstrative legacies — intention of testatrix.</p> <p>Testatrix having received $2,000 as insurance upon the life of her husband loaned to her son $1,500 thereof. Pending a proceeding in the Surrogate’s Court to enforce her claim, against her son’s estate for the amount of said loan with interest, testatrix made a codicil to her last will by which she bequeathed to her deceased son’s two daughters “ the sum of $1,500 — my husband’s life insurance money, which they already have.” The executor of testatrix recovered upon said claim, but the estate of the son being insolvent there was only a part collection of the claim. Held, that the intention of the testatrix was that the gift, which was to be drawn primarily from the cause of action against the estate of her deceased son, should be paid by her executor either primarily or exclusively out of property which was hers and which became subject to the administration of her estate.</p> <p>The words of the codicil “ which they already have ” must be regarded as a misdescription, it appearing by parol evidence to have been known to the testatrix to be inaccurate.</p> <p>The legacy being in the nature of a general legacy and pointing to the fund out of which it was to be paid was demonstrative, and the parol evidence requiring that the codicil should be construed as if it were a bequest of $1,500 to the legatees from the amount which their father owed to testatrix, the legacy so far as it had not been paid from the demonstrated source was payable from the general estate of testatrix.</p>

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

<p>Legacies — for whom legacy intended — evidence.</p> <p>Where a nephew of testatrix had a son by his first wife, who was always known and called by testatrix as “ Harry,” though his name was “ Hamilton,” and there was a son by his second wife who was christened “Harry Wade,” and a dispute arises as to which grandnephew was intended by a legacy “ to Harry Wade, son of my nephew John H. Wade,’’.and the undisputed testimony of numerous members of the family clearly shows that testatrix had a particular affection for “ Hamilton ” and was very much incensed with his father when he deserted his first wife, leaving her to shift for herself and subsequently obtaining a divorce from her on grounds which did not appear, it will be held that said legacy was intended for “ Hamilton.”</p>

<p>Wills — when, deemed to he “ established ” — when application for ancillary letters granted — Code Civ. Pro. § 2629.</p> <p>Where decedent while a resident of France made a mystic or secret will there in accordance with French law, and in the presence of six witnesses delivered it to a notary who enclosed it in a sealed envelope on the outside of which said witnesses signed their names, and after the death of testatrix the notary, who had retained the will, and the witnesses appeared before a French court of competent jurisdiction where the will was duly proved and recorded, and it appears that the decedent left assets in New York county, the will will be deemed “ established” within the meaning of section 2629 of the Code of Civil Procedure and the application of the universal legatee under the will for ancillary letters will be granted upon condition that the petitioner give a bond in the value of the personal property in this state.</p> <p>A next of Idn of testatrix who has instituted a proceeding in the French courts to have the will declared invalid upon the ground of want of testamentary capacity, which proceeding is still pending, has a right to intervene in the proceeding to obtain ancillary letters.</p>

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

<p>Ruling as to certain evidence in an action by a wife to recover amount expended for necessaries.</p>

The relator moves, under an order to show cause, for an order restraining respondent Foley, as mayor, from further proceeding in the matter of charges preferred by him against relator Kennedy as commissioner of public safety of the city of Cohoes.

<p>Pleading—in action to remove cloud on title — allegations contained in complaint — condemnation proceedings — what not counterclaim — when motion for judgment denied—Code Civ. Pro. § 514, 522.</p> <p>Where, in an action to remove a cloud on title and to cancel of record a lease for 999 years and to adjudge the plaintiffs entitled to an. award made in condemnation proceedings for a portion of the premises taken, the complaint, after setting forth facts in connection with an attempted sale of the property by drainage commissioners, alleges that their proceedings were null and void and will be so established by facts extrinsic of the record, without alleging what these facts may be, an allegation of the answer of the defendants who do not claim to own the fee, which after setting forth more fully and in detail the proceedings of the drainage commissioners with the conclusion that they are legal, regular and binding as against plaintiffs’ claim and prays for a dismissal of the complaint, is a denial of plaintiffs’ claim and not a counterclaim to which a reply is required by sections 514 and 522 of the Code of Civil Procedure, and a motion for judgment because of the failure to serve a reply to the alleged counterclaim will-be denied.</p>

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

<p>Application by temporary administrators to pay administration expenses and claims against the estate.</p>

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

<p>Wills — illegal trust provisions eliminated — primary gifts of residue sustained.</p> <p>Proceedings upon the judicial settlement of the accounts of executors.</p>

Taxes — review of assessments for inequality — Tax Law, § 290—• Greater New York Charter, § 906 — excessive valuation — former determination may he considered though not res adjudicata. Proceedings to review assessments for taxation upon the real property of relators for the years 1906 to 1912, inclusive, upon property situated in borough of Brooklyn.

Quo warranto — complaint alleging plaintiff’s right to office and the tahimg of it by defendant — motion to compel separate statement of causes of action denied. Motion to compel plaintiff to separately state causes of action set forth in the complaint.

Elections — motion for an order directing commissioners of election of Westchester county to replace and reseal ballot box and return it to custody of cleric of city of Mount Vernon denied. Motion directing the commissioners of election of county of Westchester to replace and reseal the ballot box and return same to custody of the clerk of the city of Mount Vernon.