Volume 105 — New York Miscellaneous Reports

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

<p>Title — what required to establish good title — evidence — where description by metes and bounds incorrect — dismissal of complaint — deeds.</p> <p>In an action at law to recover the amount paid upon the execution of a contract for the purchase and sale of real estate upon the ground that defendant did not have title to the whole of the premises, the burden is upon plaintiff to establish that defendant cannot give a good title to the property.</p> <p>Even though the plaintiff in such action establishes a prima facie ease of a defect in title, the defendant may show by parol evidence a state of facts in support of his title.</p> <p>In such an action it appeared that by a deed of the premises in question, made by one of defendant’s predecessors in title, the metes and bounds were described as: “ Beginning at a point. * * * distant twenty feet ” from a certain corner, “ which point is opposite the centre of a party wall between the building upon the land hereby conveyed and the building adjoining the same on the east,” which, according to the survey of the premises would make the width thereof nineteen feet and seven inches. No other deed in the chain of title made any mention of an easterly wall and the proof showed that reference thereto was incorrect and due to a scrivener’s error. The public records of the tax department show that the comer property was a vacant lot, and as matter of fact a mortgage made by the grantee of the premises in question contained no reference to an easterly party wall, but fixed the point of beginning as distant twenty feet from the corner mentioned in the deed. Held, that as in connection with other evidence it appeared that the intention of the parties to the deed in question was that the starting point was the said twenty feet and not the center of the easterly wall, plaintiff was not warranted in rejecting the title tendered, and its complaint -will be dismissed for lack of proof that there was a reasonable doubt of defendant’s title which was acquired under a devise to her from one whose title was deducible from the referee’s deed under the sale in foreclosure of said mortgage.</p> <p>While ordinarily such a monument as the “ center ” of the party wall would be of great importance in determining the starting point, yet it conclusively appearing that the easterly wall was not a party wall, then due weight must be given to the monument fixing the beginning at a point coincident with the easterly boundary of the easterly wall and reconcilable with the description that the premises had a frontage of twenty feet.</p> <p>In an action to foreclose said mortgage one who held the title under a deed which described the premises by a description similar to that appearing in the mortgage and in the deed to plaintiff’s testator, and the only one who could have disputed the title of the mortgagee to the five inches now in dispute was made a party defendant and not only did not question said title but affirmatively .asserted in Ms schedules in bankruptcy that he owned no real property. Held, a further reason for upholding defendant’s title to the disputed five-inch strip, as the decree in foreclosure and the sale thereunder were binding upon all proper parties to the action, the force and effect of said decree being in nowise affected by said defendant’s failure to contest the plaintiff’s claim in that action.</p>

<p>Dower — when wife may maintain action to admeasure her dower against receiver appointed in judgment creditor’s action — judgments.</p> <p>Where in a judgment creditor’s action instituted after the death of the judgment debtor a deed of trust of all his property is declared void as against his creditors, said judgment is not an adjudication upon his wife’s right of dower though she joined in the deed.</p> <p>In such case, the wife may maintain an action to admeasure her dower against the receiver appointed in a judgment creditor’s action though the judgment therein was not entered until more than a year after the death of her husband.</p>

<p>Motion by the defendant for a compulsory reference.</p>

<p>City of Buffalo — jurisdiction of City Court of, under section 21(13) of the charter to entertain summary proceedings — Code Civ. Pro. § 2232(4).</p> <p>Under section 21(13) of the charter of the city of Buffalo the City Court has jurisdiction to entertain a summary proceeding under section 2232(4) of the Code of Civil Procedure to recover possession of, and to remove squatters from premises situated in said city.</p>

<p>Proceedings on a contested probate, before the surrogate without a jury.</p>

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

<p>Wills — what passes under — trusts — when assignment by residuary legatee not enforcible.</p> <p>Testatrix by the fifth clause of her will devised and bequeathed to her executors, in trust, all the rest, residue and remainder of any and all cash and securities, including bonds and stocks, or bonds and mortgages which she might own at her death. By the sixth clause, all the rest, residue and remainder of her property of every kind and nature was devised and bequeathed to her son and his heirs forever. Upon the judicial settlement of the account of the surviving executor, held, that the fifth clause referred only to tangible property in the possession of the testatrix.</p> <p>Where before certain moneys representing the share of testatrix in the estate of her deceased father and in that of her deceased mother had been paid over she died, her outstanding interests were merely intangible property and passed under the sixth clause of her will.</p> <p>An assignment under seal by the son of testatrix who was also her residuary legatee of certain property included within the sixth clause, at a time when he had no assignable interest therein, viewed as an engagement that the assigned property was to belong to the assignee when received, was merely promissory and in the absence of a valuable consideration was not enforcible.</p> <p>The assignment could not be deemed a declaration of trust as tiie trust could not be deemed to come into existence until the property was received, and it would be at most a voluntary promise to declare a trust — an obligation unenforcible either at law or in equity.</p>

Appeal from a judgment in favor of the defendant, entered in the City Court of the city of New York on a verdict directed for defendant, and from an order denying a motion to set aside the verdict and grant a new trial;

<p>Contracts — when plaintiff entitled to recover hack money paid in advance to physician for services.</p> <p>Where performance of a contract for the rendition of services by defendant as a physician at his office is rendered impossible by reason of the continued illness of the plaintiff, he is entitled to recover back the money paid in advance under the contract and not as a retainer, and a judgment dismissing the complaint in such an action will be reversed and judgment directed for plaintiff.</p>

<p>Appeal by defendant W. & E. Realty Company, Inc., from judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, in favor of plaintiff.</p>

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 by a judge without a jury.

<p>Contracts — inability to procure export license no defense in action to recover purchase price.</p> <p>Where at the time defendant gave plaintiffs an order for a quantity of chlorate of potash with directions that it should be properly packed for export, defendant knew that under federal war regulations chlorate of potash could not be exported except under a license duly granted by government officials, defendant’s inability to procure such a license is no defense in an action to recover the purchase price of the goods, which, having ordered, it was at liberty to dispose of anywhere.</p>

<p>Proceeding to review assessments made by defendants for the purpose of taxation for the year 1918.</p>

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

<p>Election Law, § 374 — when candidate for public office not entitled to examination of ballots until certificate of election has been issued.</p> <p>Where no reason for an earlier decision is shown, a candidate for public office is not entitled to an examination of ballots upon which his name lawfully appears, until the official canvass of the vote has been completed and the secretary of state has issued a certificate of election.</p> <p>An order entered upon an application made by a candidate for public office under section 374 of the Election Law should provide for the examination of ballots after the secretary of state has issued the certificate of election, and in the city of New York should be under the supervision of the board of elections at such places as it may designate, and the inspection of the ballots should proceed on the day following the issuance of the certificate of election. The order should also provide that petitioner file a stipulation in writing to pay all the expenses incurred by the board of elections, or upon its demand deposit a sum in cash for like purpose, with leave to the board to apply to the court for such further deposit as may be necessary.</p>

Taxpayer’s action to restrain the city of New York from proceeding further to carry out the provisi ons of a certain contract between the street cleaning commissioner and the New York Sanitary Utilization Company.

<p>Motion to vacate service of summons.</p>

<p>Trial — retrial — judgments — lis pendens — when motion to dismiss action for failure to prosecute denied.</p> <p>Where, in a judgment creditor’s action to set aside for fraud a certain conveyance made by the judgment debtor, the complaint was dismissed upon the merits, but no further proceedings were had until after the lapse of six years at which time the justice who presided at the trial was no longer a member of the court, and no valid judgment could then be signed or rendered by him, the result is the same as if there had been no trial and the proper procedure is to have the ease retried.</p> <p>Where it appears that a lis pendens filed against defendants’ property is still open and that the situation of the ease is due solely to the neglect and laches of defendants in failing to have a proper decision and judgment entered while the trial justice was a member of the court, their motion to dismiss the action for failure to prosecute and to cancel the lis pendens will be denied and a retrial ordered.</p>

This action is brought to recover damages claimed to have been suffered by reason of defendant’s failure to fully perform its contract to deliver one hundred pieces of woolen cloth, containing about 5,000 yards at one dollar and seventy-five cents per yard.

<p>Application for an order directing correction or cancellation of the assessment roll of city of Schenectady, pursuant to section 173-A of the Tax Law.</p>

<p>Claim for damages to motor bus by collapse of bridge over Brie canal.</p>

<p>Application to revoke letters granted ex parte to mother of deceased.</p>

Burr, as the chief law officer of the city of New York, to make application to this court for the appointment of commissioners to ascertain and determine the compensation which should be made for easements destroyed by the closing of East One Hundred and Forty-first street between St. Ann’s avenue and Brook avenue, in the borough of The Bronx.

<p>Damages — sales — ships and shipping — pleading — when demurrer to complaint sustained.</p> <p>Where in an action against the alleged purchaser of a certain steamship, to recover for his failure to complete the purchase, the plaintiff measures his damages by the amount of commission he would have received if the sale had been consummated, upon the ground, as alleged in the complaint, “ that upon the consummation and performance of said purchase agreement, to the knowledge of defendant * * * ” plaintiffs and others were to receive a commission from the seller, a demurrer upon the ground that the complaint docs not state facts sufficient to constitute a cause of action will be sustained.</p>

<p>Action upon a contract. '</p>

<p>Action for libel.</p>

<p>Action to construe a will.</p>

<p>Mandamus—peremptory writ — board of canvassers — faulty adjustment of voting machine.</p> <p>Where one was both the Republican and the Prohibition candidate for the office of governor, and solely because of the faulty adjustment of the voting machine an elector voted twice for a candidate for governor, once in the Republican row and once in the Prohibition row, his vote should not be thrown out, but should be recorded and canvassed as one vote for governor, and the court has inherent power to direct that this be done and a peremptory writ of mandamus will issue directing the board of canvassers in making and completing their canvass of the votes cast in said election district to state, declare, certify and canvass the votes east therein for the office of governor, as indicated in the opinion of the court herein.</p>

<p>Appeal from a judgment of the City Court of Buffalo.</p>

<p>Easements — action to determine claim of right of way — highways — mortgage held to cover any change in right of way.</p> <p>Where in an action to determine a claim of easement or right of way which had existed for many years in and over premises conveyed to plaintiff by one of the defendants and which, though little used and a part practically abandoned, gave access to a public highway, it appears that defendants permitted plaintiff to purchase the property and incur large expense in the improvement thereof, and to occupy the same without objection for a period of six months after the completion of the improvement and without asserting any claim to said highway, a slight change therein having been acquiesced in by defendants, they will not be permitted to reoccupy the abandoned portion of the right of way especially in view of the fact that a street constructed by one of the defendants was more direct and a better roadway, said defendant having stipulated in open court to secure to the other defendants by grant or otherwise any necessary right of way over said street.</p> <p>Where it appears that the defendant mortgagee, whose mortgage covers the old right of way, did not in any way consent to or acquiesce in the substitution of other means of access to the highway, her mortgage must be construed to cover any change in the right of way made by the consent of the parties, and having been made a party defendant and obliged to defend the action, the complaint as to her must be dismissed.</p>

<p>Action on contract, jury waived, trial by court.</p>

<p>Trusts—construction of — direction as to division of estate so held in trust — when trust estate was a vested and not a contingent gift — accounting by trustee.</p> <p>Upon the death of a brother of testator, to whom he devised one-half of his residuary estate for life, the trustee was directed to divide the estate so held in trust, into as many shares as there should be children of said brother living. One of each of said shares was devised and bequeathed to each of said children absolutely, and upon the judicial settlement of the account of the trustee it appeared that the brother and three of his children survived the testator. One of said children died and then his father. Held, that the trust estate was a vested and not a contingent gift and should be divided among) the nephews of testator and the representative of their deceased brother.</p>

<p>Proceeding upon' the judicial settlement of the accounts of an administrator.</p>

<p>Stay — when surrogate may stay an accounting proceeding of executor — wills — when stay will he granted — infants.</p> <p>The surrogate may stay a proceeding for the judicial settlement of the accounts of executors when justice so requires.</p> <p>Upon the judicial settlement of the accounts of executors who asserted a claim for reimbursement for expenses in the probate of the. will and for defending a Supreme Court action in which the will was declared invalid, it appeared that they were prosecuting an appeal from said judgment and that in another action the only heir-at-law of decedent, an infant, was asserting a claim for rents and profits against one of the executors for an amount far in excess of the expenses claimed by them. Meld, that there being no denial of an allegation of said infant’s petition for a stay of the accounting proceedings, that such expenses were paid by the executor against whom the infant was asserting his claim, the stay will be granted until the determination of the Supreme Court action, so far as the claims of the executors for reimbursement are concerned.</p>

<p>Appeal by the defendant from a judgment in favor of the plaintiff, entered in the City Court of the city of New York upon the report of the referee.</p>

Appeal by landlord from final order of the Municipal Court of the city of New York, borough of The Bronx, second district, which dismissed a petition in summary proceedings and awarded possession to an intervening claimant.

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, rendered in favor of the plaintiff, and from an order of said court amending the judgment.

<p>Chattel mortgages — when delay in filing, does not render it void as against the holder of a promissory note — negotiable instruments — conversion.</p> <p>Where no rights of an intervening creditor are prejudiced thereby, six days’ delay in the filing of a chattel mortgage does not render it void as against the holder of a promissory note made by the chattel mortgagor which did not become due until a month after the filing of the mortgage.</p> <p>In an action brought originally against a sheriff for the conversion of certain office fixtures covered by a chattel mortgage, it appeared that prior to the execution and delivery of said mortgage to plaintiff, the mortgagor, being indebted to the substituted defendant herein, made and delivered to it its promissory note which matured more than a month after the filing of the chattel mortgage which was not filed until six days after its execution and delivery. In an action upon the note the substituted defendant herein recovered judgment and the property covered by the chattel mortgage was seized by the sheriff under an execution issued upon said judgment and sold. Held, that a judgment entered upon granting a motion to dismiss the complaint in the present action was error, and said judgment will be reversed and a new trial ordered.</p> <p>The rights of the holder of the note were in no sense prejudiced or affected by the delay of six days in filing the chattel mortgage and the rights of the substituted defendant would not as matter of law take precedence over the rights of plaintiff herein under his mortgage.</p>

<p>Appeal by plaintiff from an order and judgment of the City Court of the city of New York, respectively setting aside the verdict of a jury and dismissing the complaint.</p>

Appeal by receiver from an order of the City Court of the city of New .York, directing payment in full of costs awarded in favor of respondent in a suit brought by receiver, thereby exhausting the funds in his hands without leaving any moneys to pay receiver’s compensation.

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

<p>Habeas corpus — jurisdiction of court to impose a resentence — indictment— criminal law.</p> <p>Relator, having been convicted in this state of a felony, was thereafter upon his plea of guilty to an indictment charging him, as a second offender, with the crime of rape in the first degree, sentenced to imprisonment for twenty years, which would bring about his release during the prohibited portion of the year. Held, that the court had jurisdiction to impose a resentence of twenty years and ten months.</p>

<p>Damages — rental value — provisions of barge canal contract that water power should not he interfered with — evidence — canal “ blue line.”</p> <p>Claimant’s electric lighting plant is located upon a strip of land between the state navigation canal and the Oswego river which was leased to its predecessors in 1835 and in 1846 under a title to the land to the very margin of the canal and they have continuously been in the actual use and occupation without question upon the part of the state. The plant was mainly operated by water brought from an hydraulic canal built by the state between 1826 and 1828, under the state navigation canal by two conduits six feet square ending at the west face of the west wall of said canal and discharging at that point into claimant’s forebay which was built up against said face of said wall and from which claimant drew water directly to its water wheels and claimed- to have been developing about 350 horse power. The barge canal contract at this place provided that claimant’s water power should not be interfered with but when the contractor reached this point in the work claimant was notified on August 16, 1910, by the state department of public works that the conduits, which claimant held under a lease, were about to be destroyed and that new ones would be furnished claimant some distance south of the old conduits, but discharging upon or opposite claimant’s property, and suggesting that if claimant desired to avail itself of the new conduits that it submit plans for the extension of its forebay in such manner as to utilize the water from the new conduits. On August 22, 1910, the old conduits were tom out by the state contractor, the canal enlarged and its west line moved so as to render claimant’s forebay absolutely useless and all access by claimant to the hydraulic canal was cut off. The new conduits which were not completed until November 25, 1912, were about ninety feet south of the position of the old conduits and no notice of any formal appropriation of any of claimant’s property was at any time served upon claimant. Held, that though claimant’s forebay was constructed partly if not wholly within the “ blue line ” as laid down on the Holmes Hutchinson map of 1834, made by authority of the canal commissioners, the fact that for fifty years during which claimant and its predecessors remained in the continued occupation of the property by the consent of and without objection on the part of the state establishes beyond all question that no actual appropriation of said property for canal purposes was ever made by the state of New York.</p> <p>It was the duty of claimant to connect up its forebay with the ends of the new culverts within a reasonable time after they had been constructed, so as to reduce its damages.</p> <p>Claimant is entitled to recover its damages for the reconstruction of its forebay and the rental value of its plant from the 22d day of August, 1910, until the 25th day of May, 1913, with interest on the award for rental value from the dates respectively of filing its first and second claim.</p> <p>The records of claimant showing the value to it of its electric light plant was admissible in evidence.</p>

Applications by the Public Service Commission for the first district for writs of mandamus against the several respondents.

<p>Contracts — vendor and purchaser — title — deeds — when vendor cannot be put in default for defect of title.</p> <p>Fraud — allegations contained in complaint in an action for — contracts — evidence — deeds ■—when motion to set aside judgment of non-suit and for new trial denied.</p> <p>Where an unacknowledged contract to convey contains no provision relative to the passing of the title the vendor owes the vendee no duty except to convey a marketable title to the land on the law day.</p> <p>In such case, the vendor is only bound to convey a marketable title upon full payment of the purchase money and cannot be put in default until it is paid or tendered and a deed demanded. »</p> <p>The vendor in a contract to convey fulfills his obligation thereunder if, at the time fixed for the delivery of the deed, he is able and willing to convey a marketable title irrespective of whether, when the contract was made or at any time thereafter, he had title.</p> <p>It being legal for one to contract to convey land which he does not own he cannot be put in default for defect of title or inability to convey by the vendee’s performance and demand for a deed before the expiration of the time fixed for making the conveyance.</p> <p>The complaint in an action for fraud, after alleging that defendants had entered into a contract to sell plaintiff a house and lot for a certain sum, pleaded that as an inducement to the purchase, defendants represented to plaintiff that the premises were free and clear of all incumbrances. The contract to convey which was not acknowledged contained no provision relative to the passing of title and plaintiff, upon tailing possession on the day that the contract was made, first learned of a mortgage upon the premises for an amount equal to one-half of the purchase price. About a month after plaintiff removed from the premises, since which time she has made no payments on the purchase price. There was evidence that a certain amount had been paid under the contract for which plaintiff asked judgment and that the balance of the unpaid purchase price was much greater than the amount due on the mortgage but there was no proof of a tender of the purchase price or demand for a deed of conveyance and plaintiff made no claim that she was at any time entitled to receive a deed of the premises. Held, that a motion to set aside a judgment of nonsuit and for a new trial should be denied.</p>

<p>Petition for the appointment of a person to execute a trust under the will of the late Lorinda B. Dutton.</p>

<p>Marriage — action for annulment of — what makes a valid common-law marriage — divorce—husband and wife.</p> <p>In an' action to annul a marriage entered into in August, 1914, on the ground that the defendant had another husband living at the time of her marriage to plaintiff it appeared that an interlocutory decree had been entered in her favor in an action against the former husband for divorce and that about ten days before the entry of the final decree she was married to plaintiff, who testified that at the time of his marriage to defendant, he did not know that said final decree had not been entered. It further appeared that from the time of the marriage sought to be annulled until about a week before the present action was commenced the parties had lived as husband and wife. Held, that though' the marriage involved in the present action was illegal yet having apparently been entered into in good faith with intent to contract a valid marriage plaintiff was not entitled to the relief asked, for the reason that the facts disclosed made out a valid common-law marriage.</p>

<p>Wills — construction of — direction as to equal division of one-half of estate among children — Decedent Estate Law, § 29.</p> <p>Where testator directs an equal division of one-half of his estate among his four children the share of one who died before testator leaving two infant children now living is not cut down or affected by a provision that in case of the death of any of testator’s heirs the children of such heirs should receive one-third of such sum as would have been paid to the deceased heir if living. Under section 29 of the Decedent Estate Law the gift is to the children of the deceased heir.</p>

<p>Trusts — trustees — application by cestui que trust for order directing payment of interest on funds pending determination of an action as to whether such funds constitute principal or income.</p> <p>A part of a testamentary trust fund consisted of stock of a certain corporation which declared a special cash dividend and increased its capital stock and the stockholders were given the privilege of subscribing for new shares at par. The trustee received a certain sum as his share of the cash dividend and sold his right of subscription to the new stock for a certain amount. The referee in an action brought in the Supreme Court to determine whether the cash dividend and said right of subscription constituted principal or income has not yet filed</p> <p>Ms report. Meld, that an application by the céstui que trust for an order directing the payment to him of the interest on the combined fund will be granted, as whether it be determined that the fund was income or principal, the petitioner was entitled to the interest thereon.</p>

<p>Application to vacate decree admitting will to probate.</p>

<p>Trial — actions to recover loans — evidence — negotiable instruments — when refusal to charge prejudicial error — Negotiable Instruments Law, §§ 30, 320.</p> <p>In two actions tried as one to recover a loan to each of the defendants the issues were sharply contested and plaintiff’s counsel upon the cross-examination of defendants over their objection and exception was allowed to question them as to what occurred five or six years before when said counsel had drawn papers for the dissolution of a partnership to which either or both defendants belonged, there being no connection at all between the matters inquired about and the issue in the case on trial, and the credibility of the defendants being in no respect affected by the inquiry. The trial justice also cross-examined the defendants without protest from their counsel and before any question was put to plaintiff when called in rebuttal, a motion by defendants to reopen their case was denied. Held, that it appearing that defendants’ notes given to plaintiff and which he testified were signed and delivered on May 9, 1917, immediately before he made the loans were actually dated May 18, 1917, a refusal to charge that if any moneys were advanced by plaintiff prior to the time he asked defendants to give the notes, then there could be no recovery for any moneys thereon, was prejudicial error and the judgment entered on the verdict in favor of plaintiff in each case will be reversed and a new trial ordered.</p> <p>Although without indorsement the notes were incomplete as negotiable instruments under section 320 of the Negotiable Instruments Law and not entitled to the statutory presumption, under section 30 of said law, that .they .were signed on the day of their date, they were entitled to the benefit of the common law presumption that facts which usually and regularly coexist in business affairs in the absence of evidence to the contrary coexist in any particular case and therefore, a refusal to charge, that the presumption was that the notes were signed on the day of their date, on the ground that they were not negotiable instruments, was also reversible error.</p> <p>Mullan, J., dissents.</p>

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

Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, third district, opening the default of the defendant Max Tannenbaum, vacating a judgment and restoring case to general calendar.

<p>Appeal from a judgment of the City Court of the city of New York dismissing the complaint at the close of plaintiff’s case.</p>

Appeal by plaintiff from a judgment of the City Court of the city of New York in favor of defendant, dismissing the complaint at the close of plaintiff’s case, after trial before a jury.

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

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

<p>Motion by the plaintiff to confirm the referee’s report and to direct the receiver to pay the balance shown to be due in such report together with certain disbursements and the allowance of a counsel fee.</p>

<p>Demurrer to complaint.</p>

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

<p>Wills — subscribing witnesses—evidence — when probate of a holographic will decreed.</p> <p>Where upon the contested probate of a holographic will having no attestation clause, one of the subscribing witnesses testifies that testator came to the witness and her mother, the other subscribing witness, in their home, with the paper which he said was his will, already signed by him and asked them to sign it, which they did, that the paper was laid out flat when they signed it and there was proof that the other subscribing witness, now dead, at the time she signed was able by the aid of glasses to read, probate will be decreed though the will substantially disinherits the only child of the testator.</p>

<p>Accounting—form of objections to executors’ accounts — when objections by creditor overruled — Code of Civil Procedure, § 2679.</p> <p>The form of a denial provided by the Code of Civil Procedure for actions in other courts does not apply to an accounting proceeding in the Surrogate’s Court.</p> <p>Where the account of executors shows that they have allowed a number of claims against the estate an objection by a creditor alleging that he “ has no knowledge or information as to the claims of any of the alleged creditors or other persons in said account, and therefore objects to all such claims ” is not authorized either by the Code of Civil Procedure or the rules of this court and the objection will .be overruled.</p> <p>Any form of denial which shows that there is objection to the allowance of a claim by an executor against the estate is sufficient to constitute a “ contest ” under section 2679 of the Code of Civil Procedure requiring the trial of the issues by the Surrogate’s Court, and an application for an order to overrule an objection to the allowance of the claim of the widow of the testator, who is also an executrix under his will, will be denied where the objection states, upon information and belief, the reasons upon which it is founded.</p> <p>Where the right of a claimant to have a trust impressed upon certain real estate owned by testator at his death, on the ground that he had purchased it with money held by him as trustee of another estate, may be determined in a pending action, an objection to the allowance of said claim in the present proceeding will not be considered.</p> <p>An objection based on mere allegations that objectant has no knowledge or information sufficient to form a belief as to the validity of certain claims therein referred to is insufficient and will be stricken out.</p> <p>An objection to the discharge of executors, as such, from liability for certain promissory notes alleged by them to have no present value, is insufficient; if not presently collectible and the objectant can show that there is a reasonable probability of collection in the future, the decree upon the accounting may provide that the liability of the executors for the amount of the notes be continued until the question of their collectibility is finally determined.</p>

<p>Trusts — wills — power of appointment — interest at the legal rate upon legacies runs from one year after date of the issuing of letters testamentary.</p> <p>Costs — Code of Civil Procedure, § 2746.</p> <p>The wife of testator who was the life beneficiary of the income of his residuary estate was empowered by him to appoint by will to a particular grandchild “ a share not exceeding one-half of such residuary estate so as that the same can be paid over or transferred to said grandchild if then living upon the death of my wife.” The wife died leaving a will by which she exercised the power in favor of said grandchild. Meld, that said grandchild was entitled to one-half of the residuary estate with interest at six per cent from the date of letters testamentary under the will of her grandmother.</p> <p>Under section 2746 of the Code of Civil Procedure the general guardian of an infant legatee may only be granted twenty-five dollars costs upon the settlement of the accounts of the testamentary trustee.</p>

<p>Legacies — wills — when legacies are demonstrative and not specific — commissions — Code of Civil Procedure, § 2753.</p> <p>A bequest to a sister of testatrix and another of a specific part of the personal estate is not a bequest of any particular part of her property to any particular legatee.</p> <p>Where testatrix in a bequest to her sister and another, of all her furniture, ornaments, glass, etc., and “ all other personal effects in said house ” expresses the wish that the contents of the house shall not be sold but divided between the legatees share and share alike according to value, the legacies are demonstrative and not specific, and under section 2753 of the Code of Civil Procedure the executors are entitled to commissions thereon.</p>

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

<p>Verdict — when motion to set aside verdict and for a new trial denied — trial — evidence — Code of Civil Procedure, § 999.</p> <p>Where the evidence is in conflict the court has no' right to substitute its opinion for that of the jury upon questions of fact.</p> <p>In an action to recover a sum agreed to be paid by defendant in consideration of plaintiff’s procuring a responsible person who would become a partner in defendant’s business, within a year after the formation of the partnership, the plaintiff, though defendant denied that he had agreed to make such payment, reiterated that defendant did make such promise, and testified to procuring one C to meet defendant at a certain place where a partnership was formed. At the solicitation of C, a relative of his became a member of the firm, C subscribing cash for him. The partners becoming dissatisfied, C was substituted in the place of his relative, since which time the business has been a success. Witnesses for defendant testified as to the introduction of C to the defendant and the denial of defendant’s promise to pay and the court submitted the case to the jury which rendered a verdict in favor of plaintiff. Held, that a motion to set aside the verdict on all the grounds stated in section 999 of the Code of Civil Procedure and for a new trial will be denied with exception to the defendant.</p>

Appeal by the defendant from a judgment entered in favor of the plaintiff for the sum of $1,058 damages and $46.03 costs, in the Municipal Court of the city of New York, borough of Brooklyn, sixth district, on July 2, 1918.

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

<p>Marriage — action for annulment cannot be maintained where both husband and wife object — Code of Civil Procedure, §§ 1744, 1745.</p> <p>Where at the time of their marriage the parties represented to the clergyman that they were of the age of legal consent, though the husband was not eighteen years of age and the wife was over twenty years of age, an action brought by the mother of the husband under sections 1744 and 1745 of the Code of Civil Procedure to annul the marriage cannot be maintained where both the husband and wife object.</p>

<p>Statutes — construction of — provisions of § 718-d, chapter 503, Laws of 1916, amending Greater New York Charter creating a hoard of appeals — right to appeal — certiorari — Greater New York Charter, § 719» subds. 1, 2, 5.</p> <p>The provision of section 718-d of chapter 503 of the Laws of 1916, amending the Greater New York Charter and creating a board of appeals consisting of seven members, that “ hearings on appeals shall be before at least five members of the board of appeals, and the concurring vote of five members of the board of appeals shall be necessary to a decision,” does not mean that a decision of the board either for or against the appellant is to be made by a mere majority vote in the ordinary way; such a meaning would give no effect whatever to the last clause of the sentence. By construing said section to mean that it was the legislative intent in case four of the members of the board should favor the appeal and three believe that the official maldng the decision appealed from was right, the decision should remain against the appellant and that he should succeed on the appeal only if he could secure five concurring votes in his favor, substantial meaning will be given to the latter part of the sentence of said section 718-d and a meaning which the legislature may reasonably have intended although it does not give to the word “ decision ” as broad a meaning as that word ordinarily and properly has.</p> <p>Where an appeal is heard before only five or six members of the board of appeals and less than five. concur upon the merits either for an affirmance or a reversal or a modification, the appeal should be again heard before a full board, if practicable, to the end that, with the increase in the number of members sitting and the new points of view that may be presented and the other advantages of a rehearing and reconsideration, there may be secured that concurrence of five members upon the merits, either for affirmance or reversal or modification, which concurrence it is plain the statute contemplates.</p> <p>If after such rehearing five members of said board do not concur, the appeal perforce should be deemed to have been decided against the appellant and disposed of accordingly with the consequent right of certiorari to the appellant.</p> <p>Though such construction of the statute is tantamount to adding words thereto, additions should be made so as to render reasonable and workable the statute which is unreasonable and to a large extent unworkable.</p> <p>While section 719, subdivisions 1 and 2 of the statute, grants the right of appeal to any one aggrieved by the decision of the court below, and under section 719(5) thé board may reverse or affirm wholly or in part or may modify the order, requirement, decision or determination appealed from, and make such order, etc., as in its opinion ought to be made, the practice seems to be, not to take a vote of the members upon a proposition to affirm, reverse or modify, but upon the question of granting or dismissing the appeal, and though the defect may not be substantial, the better practice would be to follow the statute.</p>

Actioít by the plaintiff as a taxpayer to enjoin the city of New York and the various officials, defendants herein, from drawing warrants for the payment of the salary of the defendant Henry Honick, as warden of Biker’s Island in the department of correction of the city of New York, and to restrain the payment of such moneys and also to restrain the municipal civil service commission from certifying the name of said Honick on the payrolls.

<p>Pleading — allegations in complaint in action for an accounting of trust funds deposited with a bank — trusts — demurrer, when sustained — when motion for judgment on the pleadings granted.</p> <p>The plaintiff in an action for an accounting of trust funds deposited with the defendant bank and wrongfully used by the trustees for their personal purposes, in order to hold the defendant liable must prove either that it appropriated the fund for its private benefit or assisted the trustees to appropriate it for their private benefit after being charged with notice of the conversion.</p> <p>An allegation of the complaint that the defendant participated in the unlawful diversion and misappropriation of the trust fund by the trustees, is a conclusion of law which unless supported by other allegations of fact cannot aid the plaintiff.</p> <p>Where the complaint does not allege that the defendant had notice or knowledge that the trustees drew checks upon the trust estate to their individual order with intent to misappropriate the proceeds and there is no allegation that defendant knew that the trustees were drawing or using such moneys for their own purposes, no inference may be drawn that the defendant assisted the trustees in the conversion of the funds, and defendant’s motion for judgment on the pleadings will be granted and the demurrer to the complaint sustained with leave to plaintiff to serve an amended complaint.</p>

<p>Attachment — unauthorized in action to foreclose a mortgage.</p> <p>Where on the face of the complaint in an action to foreclose a mortgage the plaintiff is entitled to have recourse to the defendants for only so much of the mortgage debt as the proceeds of the sale will be unable to pay, the granting of a warrant of attachment is unauthorized and upon motion will be vacated.</p>

<p>Partition — who must he parties —■ wills — when motion to compel purchaser to take title granted — Code Civ. Pro., § 1538.</p> <p>The plaintiff and the testator of the defendants were joint owners in equal shares of certain real, estate sold under a decree in partition. Said testator devised and bequeathed all the remainder of his estate to his executors in trust during the life of his wife, to pay to her the net rents, income and profits so long as she remained unmarried, for the support of herself and of testator’s infant children who might survive him. Upon the wife’s remarriage' so much of the net income as might be necessary was to be applied to the support of the children during infancy. The will further provided that upon the death or remarriage of the wife and after the youngest of the surviving children attained majority the executors, to whom was given a full power of sale, should divide the property among such of testator’s children as might then be living and the issue of such of them as had died. All of the children are still living,. also the wife, who has not remarried. The purchaser at the sale in partition refused to complete his purchase on the ground that all necessary parties to the action were not joined as defendants. Held, that under the provision of section 1538 of the Code of Civil Procedure that “ where a future estate or interest is limited in any contingency to the persons who shall compose a certain class upon the happening of a future event, it shall be sufficient to make parties to the action the persons who would have been entitled to such estate or interest if such event had happened immediately before the commencement of the action,” the “future event ” means death or remarriage of the wife and the attaining of full age of the youngest child, and does not include the possible death of the children whereby their issue would take under the will.</p> <p>In determining who were necessary parties to the action, which was commenced while all of the children were of full age, it must be assumed that the wife died or remarried immediately before the commencement of the action; the grandchildren therefore had no interest at the time the “ future event ” happened, and were not necessary parties, and a motion to compel the purchaser to take title will be granted.</p>

<p>Specific performance — when covenant in land contract will not he decreed.</p> <p>Specific performance of a vendor’s covenant in a contract to convey certain lots, to build sewers or a sewer system, will not be decreed.</p>

<p>Demurrers to indictments,</p>

<p>Benevolent Orders Law, § 7 — what is a charitable and benevolent corporation within the meaning of the Tax Law—when exempt from taxation — Tax Law, § 4(7).</p> <p>Certiorari — to review assessment upon the ground of exemption from taxation — when writ of certiorari quashed — when claim for exemption disallowed — evidence — Benevolent Orders Law, § 7.</p> <p>A corporation organized under section 7 of the Benevolent Orders Law is a charitable and benevolent corporation within the meaning of the provisions of the Tax Law relating to exemptions.</p> <p>If the property of such a corporation is used exclusively for benevolent or charitable purposes, or if the entire net income of a building maintained for the meetings of the general assembly of its members or subordinate bodies for one or more of the charities named in the statute, the building is exempt from taxation under section 4(7) of the Tax Law as amended in 1916.</p> <p>Upon certiorari to review an assessment upon the “ Syracuse Masonic Temple ” on the ground that it is exempt from taxation under section 4(7) of the Tax Law, it appeared that the building, no part of which is devoted to any ordinary commercial purpose, was erected and is owned by a corporation organized under section 7 of the Benevolent Orders Law and is the place where all the Masonic bodies and lodges of the city have their place of meeting. It further appeared that the social rooms on one of the floors are conducted by and used for the purposes of the “ Masonic Temple Club,” organized under the Membership Corporations Law, which accepts from an outside caterer, to whom the club leases the restaurant privilege, ten per cent of the gross receipts for the benefit of the members of the lodges to pay their club dues. Held, that such arrangement violated, both the letter and the spirit of the statute and was destructive of the claim that the building was used exclusively for benevolent or charitable purposes.</p> <p>While if the entire building were used for a meeting place for the members of the association and subordinate lodges and the net income received from rentals paid by said lodges, if any, was dedicated to some particular charitable purpose contemplated by the statement of objects in the relator’s certificate of incorporation, it would be entitled to claim exemption for the entire property under section 4(7) of the Tax Law, as amended in 1916, yet it appearing that the building has produced no profit even with the accretions from outside sources, and even if it had, there being nothing in the constitution of the Grand Lodge of Masons or in the by-laws of subordinate lodges that creates any obligation on the part of relator to dedicate and utilize that profit to any particular purpose, the claim for exemption must be disallowed and relator’s petition dismissed and the writ of certiorari quashed.</p> <p>The testimony of a witness that it was the relator’s purpose to turn over to the “Masonic Home at Utica” the net income from the operation of relator’s building is not sufficient to uphold a claim for exemption, it appearing that no action has been taken by relator or any of its constituent 'members obligating it to dispose of its net income, if ever it gets any, in any particular way.</p>

Application- by the plaintiff for an alternative writ of prohibition restraining the defendants from judicially settling accounts of testamentary trustees, etc.

<p>Commissions — when only one commission allowed on judicial settlement of accounts of executors — Code Civ. Pro. § 2753.</p> <p>Where upon the judicial settlement of the accounts of three executors it appears that though the amount of the principal and income of the estate is over $100,000, the principal is less than that sum, only one commission on the amount of both principal and income may be allowed under section 2753 of the Code of Civil Procedure, the executors sharing equally therein.</p>

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

<p>Proceeding upon the probate of a will. Motion for a new trial.</p>

<p>Application by certain legatees to dismiss a proceeding brought by executors to settle their accounts.</p>

<p>Trial — in Surrogate’s Court — who not entitled to trial by jury — accounting — when motion for jury trial denied — Code Civ. Pro. § 2538.</p> <p>The petitioning creditor, in a proceeding to compel an executrix to account, is not entitled as matter of right to have the issues tried by a jury.</p> <p>A demand for a jury trial under section 2538 of the Code of Civil Procedure must be seasonably made.</p> <p>Where in a proceeding brought by an alleged creditor of a testator the answer denies that the petitioner is such a creditor and sets up a counterclaim, a motion by the petitioner for a jury trial under section 2538 of the Code of Civil Procedure made when, after several adjournments, the case was ready for trial, comes too late and will be denied.</p>

<p>Wills — who must be cited upon probate — citations — who may file objections to probate of alleged will — trial—codicils—Code Civ. Pro. §§ 2610, 2617.</p> <p>Where a will is filed for probate with a codicil thereto, which adversely affects a beneficiary named in the will, there is then on file such a “ will ” as is contemplated by section 2610 of the Code of Civil Procedure, which provides that “ each person named ” as “ beneficiary in any other will of the same testator filed in the surrogate’s office ” must be cited, and all of the beneficiaries adversely affected by the codicil or a subsequent will or other codicil must be cited.</p> <p>Any other construction of said section 2610 renders unavailable section 2617 of said Code, which provides that objections must be filed pending probate or before the close of the testimony.</p> <p>Where in a probate proceeding a citation has not been served upon the legatee named in a will, who is cut off by a codicil thereto, his only remedy is by motion to vacate and set aside the decree of probate and for leave to file objections, or resort to any other remedy available prior to the granting of a decree for probate.</p>

Action by commissioner of charities of the city of New York to recover such moneys as may have been expended for s-upport arid maintenance of infants.

<p>Divorce a “ Get ” is a Hebrew bill of divorce — pleading — evidence.</p> <p>Among the Jews a “ Get,” a document drawn up in the Aramaic language, uniformly worded and carefully -written by a proper scribe, is a bill of divorce.</p> <p>Where in an undefended action for divorce the husband plaintiff, a Hebrew, testifies that he was married in Russia to defendant, who is also a Hebrew, that when they had been in this country about seven years, at her solicitation he gave her a “ Get ” in the presence of ten witnesses and that she went back to Russia and he has never seen her since, and there is evidence to show that thereafter she was married in Russia to another and is living with him as his wife, there must be judgment for a dismissal1 of the complaint upon the merits, as the offense complained of was committed by the procurement of the plaintiff or with his connivance.</p>

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

<p>Complaint was based upon section 44 of the Personal Property Law (Laws of 1914, chap. 507), and alleged that the defendant Joseph E. Earney sold to the defendant Joseph A. Earney a stock of merchandise and fixtures in bulk, and alleged the defendants’ non-compliance with the said statute, and demanded the appointment of the defendant Joseph A. Earney as receiver for the benefit of the plaintiff and all other creditors similarly situated.</p>

<p>Motion to compel the plaintiff to bring in defendants in an action to foreclose a mortgage.</p>

<p>Action to establish easement and to remove encroachments.</p>

The plaintiff sought an injunction in this action restraining the defendant Lynn from disposing of stock held by him as trustee but his complaint was dismissed after a trial at equity term. A temporary injunction had been granted pending the trial which was vacated with the judgment denying him relief.

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

<p>Municipal corporations—'liability of municipalities for dangerous conditions of public highways — negligence — evidence — city of Buffalo — when motion to set aside verdict and for new trial denied.</p> <p>Municipalities having knowledge thereof are responsible -not only for dangerous conditions of the public highways but are also liable for unsafe conditions known to them to exist in places where pedestrians pass:ng along the highways would be apt to go, even though not within the traveled pathways.</p> <p>After the defendant city had laid a concrete sidewalk in front of certain premises the owner constructed a concrete walk from the entrance of h:s house to the sidewalk, which, though slightly narrower than the sidewalk where it joined it, was on the same level and for about four and one-half feet occupied space between the sidewalk and the property line. When a new sidewalk on the balance of the street was completed there were steps of from five to six inches high at each end of the sidewalk in front of the premises in question and after the owner had written to the street department having the matter in charge, calling attention to what he deemed an unsafe condition and asking that it be remedied, the city laid a new sidewalk in front of his premises at a level five or six inches below the one replaced, but the walk leading to the house was not disturbed. While this was the situation, plaintiff, who lived with relatives at the premises in question, was walking along the sidewalk in the evening and upon reaching and in attempting to step onto the walk leading to the house her foot went under the concrete of said walk, causing her to fall. In an action against the city to recover for personal injuries it appeared that about fifty feet from the place of the accident there was a city electric light over the middle of the street and there was evidence from which the jury must have found that the plaintiff was unaware of the change of grade of the sidewalk or the difference of its level and of the walk laid by the owner of the premises where' she lived. Held, that a motion to set aside a verdict in her favor and for a new trial will be denied upon the ground that the city was liable for creating the condition from which the danger arose.</p> <p>Whether such condition was in and of itself a dangerous one and whether the plaintiff was guilty of contributory negligence were questions of fact, and even though not free from doubt, the verdict should not be set aside as agamst the weight of evidence.</p>

<p>Specific performance— when may not be decreed — action to enforce a promoter’s agreement — contracts — pleading — when motion for judgment on the pleadings denied.</p> <p>Where a part of a so-called promoter’s agreement between plaintiff and defendant provides inter alia that plaintiff should organize a certain corporation, the completion of which was prevented by certain alleged breaches of the conditions of the agreement on the part of the defendant, and for aught that appears by the complaint in an action to enforce said agreement the plaintiff will not be able to complete it, and other parts of the agreement to be performed by the defendant are wholly affected by those parts which are beyond his ability to perform, and are not separable from them, specific performance as prayed for may not be decreed.</p>

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

<p>Motions for judgment upon the pleadings.</p>

<p>Motion to compel the purchaser at a foreclosure sale to complete his purchase.</p>

<p>Statutes — “ feeble-minded person ” not entitled to a rehearing before a jury of question of fact as to competency — constitutional rights — State Charities Law (added by Laws of 1914, chap. 361), § 461.</p> <p>Where one upon a hearing duly instituted, upon notice, under section 461 of the State Charities Law (added Laws of 1914, chap. 361) has been committed to a State custodial asylum as a “ feeble-minded person ” she is not entitled, as matter of right, to a rehearing before a jury of the question of fact arising upon her competency; the omission of the statute to provide such a form of remedy is not a denial of any constitutional right.</p>

<p>Motion for a new trial on the minutes and for a dismissal of the plaintiff’s complaint.</p>

<p>Transfer tax — evidence taken before a transfer tax appraiser upon the question of domicile considered — nonresidents.</p> <p>Evidence taken before a transfer tax appraiser upon the question of the domicile of decedent who at the time of her death in New York was the wife of a British subject, considered, and held that she was not a resident of the state of New York, and that the matter should be remitted for the purpose of appraising her estate as that of a non-resident.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, dismissing the complaint.

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

<p>Contracts — an agreement to procure contracts, from United States government, in time of war, is against public policy — evidence—¡ complaint dismissed.</p> <p>An agreement made in time of war, to procure contracts from the United States government for the furnishing of equipments for its army, is against public policy.</p> <p>A defense that a contract sued on contravenes the public policy of the state may be availed of at any time.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, in favor of plaintiff and against the defendant for the sum of $645.20.

<p>Damages — rental value of motor vehicles.</p> <p>Where one is deprived of the use of an article having a provable rental value, the allowance for such deprivation of use must be measured by such rental value.</p> <p>In an action by plaintiff, which conducted a taxicab business with a dozen or more cars in service, to recover for the damage to one of its cars, resulting from the alleged negligence of the defendant, the correct rule of damages is the rental value of the car while undergoing repairs.</p> <p>The case was tried without a jury, and over defendant’s objection and exception it was shown that the average daily ^otoss earnings per car were twelve dollars; that the average datiw expense per car was five dollars and eighty cents; and that tB^v. average daily net earnings per car were six dollars and twenty cents. The trial judge multiplied this last sum by the number oAdays the car was out of service and gave judgment in favor of1'plaintiff accordingly. No attempt was made to show that it was mot possible to fix the amount of plaintiff’s loss, due to the deprivation of use of the car, by the measure of its rental value during the period of deprivation. Held, that the measure of damages adopted could not be sanctioned and that the judgment shoiild be reversed and a new trial ordered.</p>

. Appeal by defendant from judgments of the City Court of the city of New York, in favor of plaintiff, entered upon the verdict of a jury, and from orders denying defendant’s motion to set aside the verdict and for a new trial.

<p>Appeal by the defendant from a judgment of the City Court of the city of New York, in favor of plaintiff, entered on the verdict of a jury.</p>

<p>Consideration — what establishes a valid — evidence — railroads — contracts — promise — when judgment dismissing complaint reversed.</p> <p>Plaintiff, the owner of the controlling stock of a railroad company having valuable rights, brought the project of an extension of its system to the attention of defendant, who wanted to control the company, and, as a necessary step to such end, plaintiff agreed to permit her stock to be voted on by proxy in favor of a proposed reorganization which would and did give defendant such control, and he, by a written agreement recognizing his valid legal obligation to compensate ■plaintiff, agreed to pay her a certain sum as part of the consideration to be by her received. In an action to recover a balance alleged to be due under the agreement, held, that the facts established a valid consideration for defendant’s promise and made out a prima facie ease in plaintiff’s favor, and a judgment dismissing the complaint will be reversed and judgment directed in favor of plaintiff.</p> <p>Where plaintiff testified that she was to transfer no interest in the railroad to defendant, and the defendant’s version of the transaction was that plaintiff’s consideration for the sum of money to be paid by defendant was the transfer of the controlling interest which plaintiff had in the railroad and the delivery of her certificate of stock to the board of directors of the newly organized railroad company, so that a new certificate might be issued to her, and defendant admits that the transfer of the controlling interest was performed by the plaintiff allowing her stock to be voted on by proxy, the result of which was an increase of the capital stock, the trial justice in determining, as matter of law, that the evidence showed no consideration for defendant’s promise to pay, erred.</p> <p>The disputed question whether plaintiff agreed to surrender her stock and accept in lieu thereof an equal amount of the new issue, or whether she was to continue to hold her original stock, and merely agreed to allow it to be voted on, not having been determined, it must be assumed, for the purpose of considering whether as matter of law the complaint was properly dismissed, that plaintiff’s' version of the agreement in that respect is true.</p> <p>The trial justice also erred in assuming that the following clause of the agreement: “In consideration of your having suggested to me the above railroad project, which, after investigation, I have decided to endeavor to finance, construct and operate, I hereby acknowledge myself to be indebted to you,” referred to a past gratuitous service which would not be a valid consideration for any promise, as the contract itself referred to it as a service performed by plaintiff for defendant, the presumption was that it was at defendant’s request and such presumption was borne out by the following clause of the contract: “I confirm understanding with you relative to any interest you may have in the Central Carolina Railroad Company in addition to the physical possession of the certificate for 100 shares of the capital stock.” The fair construction of this part of the agreement is that the suggestion of the railroad project) was made pursuant to an understanding between plaintiff and defendant, which defendant understood to have included a promise of compensation.</p>

<p>Savings banks — when not put upon inquiry in transferring account from a trust account to an individual account — negotiable instruments.</p> <p>A savings institution, without inquiry as to the purpose for which the transfer was -being made, may rightfully permit the transfer of moneys from the account of “Mamie Blenderman in trust for Florence Blenderman ” to the individual account of the former.</p> <p>In an action to recover $500 loaned by a bank to Mamie Blenderman upon the security of a savings bank book issued to her in her individual name and showing a deposit of $595.73, it appeared that an assignment of $500 thereof was made by her to plaintiff at the time of the loan and the savings bank Was at once informed of the fact and acknowle'dged receipt of the notice. The loan not having been paid, the savings bank book with the assignment was presented by plaintiff at the savings bank and payment refused with the statement “ payment had been stopped.” It further appeared that an account had been opened in the savings bank in the name of Mamie Blenderman in trust for Florence Blenderman and that the moneys in said account were the property of the latter; that thereafter upon the application of Mamie Blenderman for the loan, she informed plaintiff that she could furnish as collateral, a pass book described as an account in the name of “ Mamie Blenderman in trust for' Florence Blenderman ” in the defendant savings institution. Plaintiff informed her that while it could not take the pass book as security, yet, if the money should be withdrawn by the trustee and deposited in her name as an individual, the new pass book issued would be taken as security; and thereupon, without the knowledge of the defendant Florence Blenderman, Mamie Blenderman drew out said trust fund and redeposited the same in her own name as an individual. Held, that plaintiff was not put upon any further or other inquiry than was required of the defendant savings institution in transferring the account from a trust account to an individual account as it might rightfully do without inquiry as to why the change was being made, and a judgment in favor of defendants will be reversed and judgment directed in favor of plaintiff.</p> <p>Bijur, J., dissents.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of New York, rendered in favor of the plaintiff for the sum of $1,000 and costs.

<p>Appeal by defendant from a judgment of the City Court of the city of New York, rendered in favor of the plaintiff.</p>

<p>Appeal from an order of the Municipal Court of the city of New York, borough of Manhattan, first district, denying defendant’s motion to open a default, and to vacate a judgment entered thereon.</p>

<p>Accord and satisfaction — when established — landlord and tenant — evidence — when judgment granted to defendant.</p> <p>A tenant, though her landlord was willing to stand a part of the expense, insisted that under the lease the landlord was liable in the full amount of a bill for repairs to the premises which the tenant had paid, and she sent a cheek for the rent less the amount of said bill, indorsed “In full payment of rent,” etc., itemizing the deduction on the back of the check. By telephone and letter the attorney for the landlord notified the tenant that he would deposit the check and commence dispossess proceedings unless the balance of the rent was paid, and after drawing a line through said indorsements on the check he deposited the same and brought an action to recover the balance. JHeld, that the evidence established an accord and satisfaction and that a judgment in plaintiffs favor, based upon a ruling that the defense of accord and satisfaction had not been established, will be reversed and judgment granted to the defendant.</p>

<p>Conversion — when sheriff not entitled to fees in receiving money under attachment — Code Civ. Pro. §§ 3287, 3307(7).</p> <p>A sheriff by virtue of a warrant of attachment received from the defendant in the action, the plaintiff herein, a certain amount in cash in place of the property attached, the same to be held and deposited by him in a certain bank subject to the further order of the court. The attachment was discharged by an order which directed the sheriff to deliver to the defendant in the attachment, the property so attached and remaining in his hands, but he returned only a portion of the money claiming the balance as fees. Held, that the facts did not show a collection of money by virtue of the attachment and that in an action of conversion for the amount retained by the sheriff, a defense that he was entitled thereto under section 3307 (7) of the Code of Civil Procedure must fail.</p> <p>Likewise, a defense that no notice, as required by section 3287 of the Code of Civil Procedure, demanding that he, as sheriff, tax his costs, charges and expenses in the action in which the attachment was granted, was served upon him, must also fail as said section applies only where there has been collection on an execution or a settlement of the action.</p>

<p>Contracts — between mortgagor and mortgagee for application of insurance money for restoration of building — foreclosure — evidence — liens — when claim of subcontractor should be dismissed.</p> <p>Costs — where case was neither difficult nor extraordinary additional allowance will not be granted—Code Civ. Pro. § 3253(1).</p> <p>Judgments — to be entered must conform to decision of court — trial — Code Civ. Pro, §§ 1022, 1228, 1230, 1231.</p> <p>In an action to foreclose a mortgage containing the usual clause requiring the mortgagors to keep the buildings insured for the benefit of the mortgagee, it appeared that the loss occasioned by a partial destruction of the building was adjusted by the payment of a certain sum to the mortgagee; that thereafter an agreement in writing was made between the individual mortgagor, who was also a stockholder in the corporate mortgagor, and the mortgagee for the application of the greater part of the insurance money to the restoration of the building. The individual mortgagor gave the contract for the work to S., who, after doing a part of the work and receiving a certain sum, abandoned the contract at a time when nothing was due him thereunder. The building is unfinished and untenantable and plaintiff has the possession of the balance of the insurance money. The mortgage provides that the mortgagee may apply any of the insurance moneys on the mortgage, or pay it over wholly or in part to the mortgagors, their heirs, successors or assigns, to enable them to repair the buildings or to erect new ones or for any other purpose satisfactory to the mortgagee without affecting the lien of the mortgage for the full amount secured before the fire or such payment over took place. Meld, that as the evidence failed to show that plaintiff had done anything which could in any way be construed as a release or waiver of her lien, an alleged lien for a balance due a subcontractor of S., for work done and materials furnished, could not be satisfied out of the balance of the insurance money in plaintiff’s hands.</p> <p>Plaintiff was entitled to judgment as prayed for and the claim of lien of subcontractor of S. for the balance due him should be dismissed but without prejudice to any right of action he may have against S.</p> <p>The case was neither difficult nor extraordinary and plaintiff may only be granted the additional allowance provided for by section 3253(1) of the Code of Civil Procedure.</p> <p>Under sections 1022, 1228, 1230 and 1231 of the Code of Civil Procedure, which require that the judgment to be entered must conform to the decision of the court, the findings should cover all the material issues made by the pleadings, and no proper judgment may be entered until the court, as required by said section 1022, has made and filed a decision disposing of the issues and directing the entry of judgment.</p> <p>Where plaintiff’s proposed conclusions of law failed to comply with said provisions of the Code of Civil Procedure, requests for findings will be returned to the clerk of the court in order that plaintiff may present amended ones, with proof of service thereof on all of the defendants appearing in the action.</p> <p>The proposed findings of the subcontractor of S. not appearing to have been served, will be returned to the clerk of the court in order that a copy thereof or of new ones, if said defendant so desires, may be served upon the plaintiff’s attorney.</p>

<p>Contracts — conditions contained in — sale of goods en route — pleading — Personal Property Law, §§ 88, 89.</p> <p>A written contract whereby defendant agreed to sell to plaintiff 2,800 baskets of Spanish chestnuts, good quality, which both parties believed from ■ report had been shipped and were on a certain steamship then en route to the port of Mew York, is conditioned upon the arrival of the steamer with the goods described in the contract and, upon the arrival of the vessel in said port without such goods, the contract is at an end.</p> <p>Where there is nothing to show that defendant knew the quality of the chestnuts, which, at the time of the making of the contract of sale, had been upon the ocean more than fifteen days, and the answer in an action for non-delivery alleges that they had deteriorated in quality without the knowledge of the defendant, the words “ good quality ” in the contract must be held to be merely descriptive of the goods and not to constitute a collateral warranty.</p> <p>The complaint in an action for non-delivery of the chestnuts, after setting forth the contract, alleged the due arrival of the steamer at New York on a certain date with the 2,800 baskets of chestnuts aboard but that defendant repeatedly neglected and refused to deliver said chestnuts and still fails and refuses to deliver the same. The defendant, in various forms, by separate affirmative defenses alleged facts intended to bring the case within sections 88 and 89 of the Personal Property Law.</p> <p>The first affirmative defense, after alleging that the contract of sale was for a specific shipment of 2,800 baskets of chestnuts at the time aboard a certain steamer on its way to New York, pleaded that after the malting of the contract and before the arrival of the chestnuts, without defendant’s fault, part of the chestnuts perished or the whole or a material part so deteriorated in quality as to be substantially changed in character.</p> <p>The second affirmative defense contains the same allegation except that it pleaded that subsequent to the making of the contract the chestnuts wholly rotted and perished.</p> <p>The third affirmative defense alleged that at the time of the contract of sale, the chestnuts had, without the knowledge of defendant, perished in part or had wholly or in a material part so deteriorated in quality as to be substantially changed in character.</p> <p>The fourth affirmative defense alleged that at the time when the sale was made the chestnuts had, without the knowledge of defendant, wholly rotted or perished. Upon overruling a demurrer to all the said affirmative defenses, with leave to withdraw, held: the contract was susceptible of the interpretation that defendant merely agreed that if goods such as described in the contract arrived, defendant would deliver them to plaintiff for the agreed price, and that without regard to sections 88 and 89 of the Personal Property Law, the fact that 2,800 baskets of good quality did not arrive as contemplated by the parties, would of itself end the contract and release defendant from any obligation thereunder, because his promise to sell and deliver such goods was based upon a condition which was- never fulfilled.</p> <p>The defendant was not bound under the contract to deliver the whole number of baskets of chestnuts of good quality and in good condition, unless he had expressly and uneond:tionally so agreed, and that if the allegations of the answer are true he has not made such a promise.</p> <p>Where both parties are desirous tlat the affirmative defenses shall be considered upon their merits, the court is justified in disregarding any claim that technically said affirmative defenses should have contained denials of such allegations of the complaint as could be proven under a general denial.</p>

<p>Mandamus — when alternative writ of mandamus may he issued — railroads—■ highways — burden of proof—• municipal corporations — Railroad Law, §§ 91, 93.</p> <p>Upon an application under section 93 of the Railroad Law which provides that when a highway crosses a railroad by an overhead bridge, the framework of the bridge and its abutments shall be maintained and kept in repair by the railroad company and the roadway thereover and the approaches thereto shall be maintained and kept in repair by the municipality having jurisdiction thereof and in which same are situated, an issue of fact raised by an answer denying the allegations of the petition can only be determined by issuing an alternative writ of mandamus.</p> <p>While the relator in a petition for a writ of mandamus directing the respondent to repair without delay the framework of the bridge carrying Morris avenue in the city of New York over the railroad tracks at One Hundred and Fifty-sixth street has the burden of proof to establish the facts alleged in its petition before respondent can be required to comply with said section 93, respondent should not be required to do more than to bring the bridge to the standard of efficiency it had when originally constructed.</p> <p>The respondent is not bound to strengthen the bridge so as to take care of the present traffic which largely exceeds that which could have been contemplated in 1890, when the bridge was built.</p> <p>If the conditions proved upon the hearing of the alternative writ of mandamus call for a change in the existing structure within the meaning of section 91 of the Railroad Law and not merely for repairs, recourse must be had to the procedure prescribed by that section.</p> <p>That the respondent is under Federal control and operated by the director general of railroads does not excuse it from performing any duty owing to the state and general order No. 50, issued by said director general, has no application to the case;</p>

<p>Action to foreclose a lien, upon certain shares of stocks and certain bonds standing in the hands of defendants.</p>

<p>Public Service Commissions Law, § 74 — when obedience to order may be enforced — gas companies — Public Service Commission.</p> <p>Where the Public Service Commission has made an order directing a gas company to file a schedule of its rates and the forms of its contracts, obedience to said order may be enforced by an application under section 74 of the Public Service Commissions Law.</p>

<p>Mortgages — action to set aside for duress — mechanics’ liens.</p> <p>In an action to set aside a" bond and mortgage, it appeared that defendant was under contract with plaintiff for a part of the work on buildings erected upon the mortgaged premises. An action to enforce the lien of another contractor resulted in a decision against the plaintiff herein, who gave a second mortgage for a loan sufficient to pay and discharge said lien. When the title was searched, it was discovered that after the said decision in the other lien action defendant herein, acting in bad faith, had filed a lien against the property for $2,440 at a time when plaintiff only owed him $112, the balance of said defendant’s claim being fictitious, and that more than six months had elapsed, before the filing of said lien, since he had done any work for plaintiff who, when he heard of said lien, offered the full amount he owed and requested a discharge of the lien, which was refused. Plaintiff being without means of raising the money with which to pay the amount due the other contractor, except by a mortgage upon the property which could not be made while defendant’s lien remained of record, and protesting that he did not owe defendant more than $112, he, in order to get his loan on mortgage and pay his other indebtedness and thus avoid a sale of the property, paid the defendant a certain sum in cash and executed the bond and mortgage in suit. In awarding judgment in favor of plaintiff, held, that the bond and mortgage in suit had been made and executed under duress.</p> <p>That the lien filed by defendant was invalid because not filed in time and having been wilfully filed with the knowledge on the part of the defendant that there was no basis for claim thereunder, it was wholly invalid even though otherwise it would have been valid for a lesser amount.</p>

<p>Actions to establish contract of mutual wills, between parents of plaintiffs, tried by the court without a jury.</p>

<p>Bonds — when action on, may he brought in this state — corporations.</p> <p>Bonds of a domestic corporation executed in this state were secured by a mortgage upon real property in a sister state, which property was conveyed under a trust agreement to a domestic trust company, the registrar of the bonds. Held, that the obligee could maintain, an action in this state to recover on the bonds and that it was no defense that under a statute of the state in which the mortgaged property is situated, the remedy would have been to first foreclose the mortgage.</p>

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

Action to construe the Township School Law (Laws of 1917, chap. 328), and to determine its constitutionality and to restrain defendants from collecting certain taxes under said law.

<p>Statute of Limitations — when begins to run — corporations — stocks — evidence — fraud — Code Civ. Pro. §§ 382(5), 388.</p> <p>Upon the issuance of corporate stock, the stockholders have the right to permit such value to be placed upon the property of the corporation as they choose and may permit the stock to be issued for such lawful considerations as they choose and, if no rights of creditors or the public are affected, the corporation may not be heard to complain.</p> <p>Where stockholders at all times acquiesced in the issuance of stock they had approved of they are bound by such action as well as the corporation.</p> <p>Where it appears that the stock was in fact issued as a result of corporate action and was not only a part of but was the very plan and purpose which underlay the formation and organization of the corporation, no formal resolution was necessary to legalize the issuance of the stock.</p> <p>In an action to have adjudged and declared null and void certain certificates of stock in the plaintiff corporation issued to the defendants and severally held by them and directing the cancellation of said stock upon the ground that it was issued unlawfully and without authority of plaintiff, the ten-year Statute of Limitations (Code Civ. Pro. § 388) applies and begins to run from the time when said stock was in fact issued.</p> <p>It appearing that there was no actual fraud in the issuance of said stock issued to the principal defendant, but that it was issued with full knowledge of the then stockholders and upon said defendant’s assertion that it was being issued to him by reason of his one-quarter interest in an option for the purchase of a certain timber tract, to take over which the corporation had been organized, and on account of services rendered and disbursements incurred by him, section 382(5) of the Code of Civil Procedure, postponing the running of the Statute of Limitations until the discovery of the fraud, does not apply.</p> <p>Evidence considered and complaint dismissed upon the merits and defendants given judgment upon their counterclaim for the amount of their pro rata shares in the distribution of certain stock, with interest.</p>

<p>Mandamus — when writ of, will issue — schools — Education Law, § 567.</p> <p>Where at a duly called special meeting of a school district of Dutchess county there was passed a resolution to pay for the education of any child of the district who qualified for and attended the Poughkeepsie High School, and directed the levy of taxes therefor, a writ of mandamus will issue directing the trustee of said district to pay the tuition of relator’s children at said high school. Authority for such action on the part of the school district is found in section 567 of the Education Law.</p>

<p>Foreclosure — mortgages — when loss of bond will not prevent a decree of foreclosure — when mortgagor not entitled to an indemnity bond — evidence.</p> <p>When a satisfaction piece is offered and a certified check for the amount due upon the mortgage is produced and an explanation made regarding the loss of the bond, the mortgagor is not entitled to demand a bond of indemnity.</p> <p>Where in an action to foreclose the mortgage, which was put in evidence, the loss of the bond is satisfactorily shown by proof that upon a reassignment to plaintiff of the bond and mortgage by his attorney, to whom an assignment thereof had been made, the bond could not be found, and that plaintiff had neither assigned nor delivered the bond and mortgage to any one since the assignment to his attorney and that at the commencement of the suit he was the owner of said bond and mortgage, judgment of foreclosure will be awarded for the amount claimed to be due.</p>

<p>Accounting — by public administrator—provisions of decree — to whom moneys in the hands of the public administrator should be paid.</p> <p>A sum of money in the hands of the public administrator of the county of Bronx for distribution among persons who are unknown, should be paid into the treasury of the city of New York, not into the treasury of the state, and the decree entered upon the judicial settlement of the accounts of the public administrator must so provide.</p>

<p>Depositions — application to procure depositions of surrogate’s chief clerk and stenographer denied — privileged communications — Code Civ. Pro. § 885.</p> <p>All communications between the surrogate and his chief clerk and his stenographer arising out of the work in the consultation room of the surrogate are privileged and an application under section 885 of the Code of Civil Procedure to procure the deposition of said clerk and stenographer in regard to such communications will be denied.</p>

<p>Action to recover rent.</p>

<p>Specific performance — oral contract to devise — should be established by satisfactory proof — enforced if based on good consideration.</p>

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

<p>Action to recover the amount of a benefit certificate or policy.</p>