Volume 106 — New York Miscellaneous Reports

<p>Claim for damages caused by the flooding of claimant’s land.</p>

<p>Damages — state not liable for, by reason of excessive rainfall— flooding of lands — evidence — burden of proof.</p> <p>A canal feeder leads from a point on Limestone creek in the town of Manlius, Onondaga county, just above the Gaynor dam, to the Brie canal near an aqueduct. The creek flows from the dam parallel with the feeder and a few feet distant from and below it to the canal, under the aqueduct, and passes through the twenty-two acre farm of claimant about a mile from the aqueduct, and at claimant’s premises is about forty feet wide. On the early morning of July 2, 1915, as the result of a four days’ excessive rainfall, the creek rose rapidly, overflowed its banks and continued to rise until claimant’s premises were flooded to a depth of between six inches and two and one-half feet. The water began to recede on the afternoon of July third and the premises were free from it on the next day. Upon the hearing of a claim to recover for-the destruction of claimant's crops and pasture resulting from the inundation on the ground that the flood was caused in whole or in part by the discharge of water into the creek from the canal and feeder through a waste weir and over the sides of the aqueduct, the claimant failed to establish, by a preponderance of evidence, that any material quantity of water reached the creek from either the canal or the feeder. Held, that the burden was upon plaintiff to produce evidence tending to show that the state was responsible for any portion of the damages and his failure not only to produce any proof of the extent of the state’s liability but also that it was responsible for any part of the loss, calls for the dismissal of the claim.</p>

<p>Claim for damages caused by the flooding of claimant’s land.</p>

Claim to recover the cost paid by the Delaware and Hudson Company for reconstruction of its bridges crossing the Mohawk river at Waterford, No. 14,398, and Schenectady, No. 14,400.

<p>Application for a reargument of a motion for an alternative writ of mandamus.</p>

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

<p>Actions — who may maintain, in s,tate courts — carriers — interstate commerce — jurisdiction — when motion to dismiss denied — stay — provisions of act of Congress approved March 21, 1918, chap. 25, § 10.</p> <p>The act of Congress approved March 21, 1918, chapter 25, which provides for the administration of transportation systems under Federal control, was not intended to authorize the president or his agent or agents to make orders affecting the jurisdiction of the state courts or affecting the right to maintain actions therein.</p> <p>The provision of section 10 of said act of Congress, which declares that “ Carriers while under Federal control shall be subject to all laws and liabilities as common carriers * * * except in so far as may be inconsistent with the provisions of this Act or any other Act applicable to such Federal control or with any order of the President,” must be construed to be wholly prospective in its operation and to affect only liabilities arising after said act took effect; it was not intended by this legislation either to extinguish or impair vested rights of action or to authorize the president or his agent or agents so to do.</p> <p>At the time of the commencement of the present action brought by a New Jersey corporation to recover damages to property shipped in part over the line of defendant, a Kansas corporation, from a point in California to a point in the state of New Jersey, the defendant being the initial carrier and subject to suit under the Interstate Commerce Act irrespective of whether the damage occurred on its line or on that of a connecting carrier, plaintiff was confronted with this situation: The two-year limitation provided by the bill of lading pursuant to the Interstate Commerce Act was about to expire, and there was no officer of defendant in New Jersey upon whom service of process could be made, and, having no knowledge upon the subject nor means of ascertaining in which county or district the cause of action arose, plaintiff was debarred from bringing suit in either of the jurisdictions specified in general order No. 18 of the United States director general of railroads, as modified by general order No. 18A, which provides that actions against carriers while under Federal control must be brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action, or in the county or district where the cause of action arose. Both of the parties to the action have offices in New York for the transaction of business. Held, that a motion to dismiss the action on the ground that it was brought contrary to said order of the director general must be denied as it was beyond his power as agent of the president to make an order whereby plaintiff’s existing right of action would be extinguished or cut off.</p> <p>Held, further, that the motion, so far as it asked for a stay of proceedings, must be denied upon the ground that facts were not set forth to show that the just interests of the government would be prejudiced by the trial of the action in the courts of this state.</p>

<p>Motion to change place of trial.</p>

<p>Application Tby the attorney-general for leave to bring an action against a business corporation.</p>

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

<p>Foreclosure — mortgages — insurance (fire)— mortgagee clause — pleading — contracts — evidence — subrogation.</p> <p>Where each of several policies insuring a building “while occupied as a dwelling” contained a provision that the policy should be void if the building, whether intended for occupancy by the owner or tenant, should be or become vacant or unoccupied and so remain for ten days, and conceding that the building was vacant at the time of the fire, it is disputed whether it was vacant for ten days before, the burden of proof to show the fact is upon the insurer.</p> <p>After plaintiff had given to two individuals three mortgages upon certain real estate he conveyed the property, taking back a purchase money mortgage for $1,836, and a subsequent grantee insured the two dwellings on the property in one company for $2,000 and in another for $500. A New York standard mortgagee clause making the loss payable to the estate of the first mortgagees, they having died, to the amount of their claim and in excess to plaintiff as second mortgagee “ as interest may appear,” was attached to each of said insurance policies. One of the insured buildings was totally destroyed by a fire, the loss being $3,720, and though the insurers retained the proofs of loss filed by the owner of the property who had taken out the insurance, no payment thereof was made. After the commencement of an action on each of the policies, to which the insurance companies and the executor of the deceased first mortgagees were made parties defendant, the insurance companies paid said executor $2,487.60, the amount of the three mortgages with interest, taking an assignment thereof, and after tendering plaintiff $12.40, the remainder of the insurance money, which was refused, there being due upon plaintiff’s mortgage $1,736 and interest, the insurance companies answered the complaint claiming subrogation but failed to serve their answer upon the defendant who had taken out the insurance and she neither appeared nor answered in the action. Held, that the mortgagee clause providing that the insurance as to the interests of the mortgagees should not be invalidated by any act or neglect, of the mortgagor owner, constituted a contract between the insurance companies and the mortgagees separate and distinct from that with the owner of the property.</p> <p>Provisions in the policies for subrogation, assignment and transfer, and the condition that “no subrogation shall impair the right of the mortgagee to recover the full amount of his claim ” were for the benefit of each of the mortgagees, consequently the payment to the executor of the first mortgagees was a payment of their mortgages so far as the plaintiff in the present action is concerned, and the insurance companies are required to pay the whole mortgage debt if they desire to assert their claims against the owner of the property, otherwise the insurance is of no benefit to plaintiff and is invalidated as to him by the act or neglect of the mortgagor.</p> <p>That as in the present action brought to foreclose the mortgage for $1,836 and to determine its priority, upon the claim that the first three mortgages had been paid and extinguished so far as the mortgage in suit was concerned, the evidence required a finding that the destroyed building was vacant for more than ten days before the fire, plaintiff was entitled to the relief prayed for.</p>

<p>Liens — foreclosure of mechanics’ liens — contract for building loan must be filed — Lien Law, §§ ii, 22.</p> <p>Under section 22 of the Lien Law a contract for a building loan must be filed in the clerk’s office of the county in which any part of the land is situated, within ten days of its execution.</p> <p>Under section 11 of the Lien Law, which does not provide for filing or indexing a notice of lien against or for serving it upon any one except the owner, the effect of filing a notice of lien against an owner who has made a loan contract, which has not been filed, is to subject the interests of each in the real property affected to the lien of a person who thereafter files a notice of lien.</p> <p>Though the lender under a loan contract acquires no lien upon the real property affected, even if the contract is filed, he may acquire a lien by taldng a mortgage in conjunction with the contract, and where he does so, the contract and the mortgage constitute the transaction, and if the contract is not filed, the lender’s interest under his mortgage will be superseded by a subsequently filed lien without it being filed or indexed against him or served upon him.</p>

<p>Wills — trusts — powers in trust — interest on bequests.</p> <p>The donee of' a power of appointment under her father’s will directed her executors and trustees to expend $100,000 in the erection of a public library in a certain village to be called the “ George L. Pease Memorial Library ” and further directed that if the village accepted it, the library when completed should be conveyed to the village and she bequeathed to her executors in trust $50,000 for the maintenance of the library. In case the village accepted the responsibility of the maintenance of the library the executors were authorized to pay over to it said $50,000 for that purpose, and they were also empowered to enter into such arrangement with the village as they might deem proper for the best interests of the library, and they were still further empowered, on like condition, to form a corporation which would take the legal title to the building and the endowment fund. JReid,' that the direction as to the expenditure of the $100,000 was not a gift appointed, but was in the nature of a power in trust, to be satisfied by the payment of that sum in one amount or in several installments within a reasonable time after the death of the daughter, but without interest unless the reasonable time for payment was exceeded.</p> <p>The provision as to payment of the $50,000 was a gift in trust and properly bore interest from the death of the daughter.</p>

<p>Evidence — admissibility of — wills — presumption in favor of validity of second marriage.</p> <p>Upon a proceeding for the probate of a will evidence of the declarations of the testator made in the absence of the proposed intervener claiming to be his widow and inconsistent with a matrimonial relation between them, is admissible.</p> <p>Where the validity of a second marriage is assailed upon an allegation that one of the parties thereto was a party to an earlier marriage, the presumption is in favor of the validity of the second marriage.</p> <p>Where the factum of the second marriage is established and there is a failure of proof sufficient to overcome the presumption in favor of its validity, the proposed intervenor will be declared the lawful widow of the deceased- and will be allowed to intervene in the proceeding.</p>

<p>Commissions — testamentary trustees — accounting — trusts — when only one full commission allowed — Code Civ. Pro. § 2753.</p> <p>The right of testamentary trustees to commissions is governed by the law in force when their account is settled.</p> <p>Testamentary trustees assumed the trust respecting certain real estate before section 2753 of the Code of Civil Procedure, as to trustees’ commissions, was amended in 1916, to read as follows: “ The value of any real or personal property, and the increment thereof, received, distributed or delivered, shall be considered as money in making computation of commissions.” Upon the judicial settlement of their account, since said amendment, it appeared that there was a direct devise of the real estate with respect to two residuary trusts, while two legacies of fixed sums in trust were specifically charged upon the real estate, with direction for their provision out of the real estate, should the personalty prove insufficient, and the trustees were directed to use or hold all or such part of the real estate as they might deem necessary for the purpose of completing the funds bequeathed in trust. The accounting parties though they held more than $395,000 of the estate were trustees of six separate trusts, no one of which amounts to more than $69,000. Held, that under section 2753 of the Code of Civil Procedure as amended, the test of the size of the estate or fund is the amount found in each fund separately accounted for, the value of the estate to be taken as of the time of its receipt by the trustee, with result that the trustees herein are entitled to one commission to be divided among them, viz., one full commission on all moneys received and disbursed, and one-half commission on all the estate or funds received by them, whether personal or real, such allowances to be borne proportionately by the several trusts.</p>

<p>Transfer tax — deeds — real property — transfers in contemplation of death — appeal — Tax Law, § 220(4).</p> <p>Where by deeds of conveyance executed less than two months before the death of the grantor, he reserves to himself the right to collect and retain for his own use and benefit during his lifetime, the rents of the premises conveyed, the conveyance is subject to a transfer tax under section 220(4) of the Tax Law, as a gift to take effect in enj oyment after the death of the grantor.</p> <p>Where it appears that at the same time decedent, who was at least seventy-five years of age, conveyed other real property by deeds containing no such reservation, but his physical condition was such that he must have realized that his death within a short time was inevitable, a finding that the transfers were made in contemplation of death is justified and they are subject to a transfer tax.</p> <p>Though real property transferred by a decedent within two months of his death may be subject to a transfer tax it is not subject to the payment of funeral and administration expenses.</p>

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

<p>Insurance (marine) — construction of policy — ships and shipping — damages to goods on dock.</p> <p>Where there is an inconsistency between the provisions of a policy of marine insurance, a written clause will control over one which is printed, and special provisions over general.</p> <p>When printed and typewritten parts of such a policy are not inconsistent but merely qualify each other, the policy will be given a construction most equitable to both parties, effect being given, if possible, to all parts of the contract.</p> <p>Where to a policy of marine insurance containing the following in print: “ Touching the adventures and perils which the said insurance company is contented to bear, and take upon itself in this voyage, they are of the seas, fires, pirates, rovers, assailing thieves, jettisons, criminal barratry of the master and mariners, and all other like perils, losses and misfortunes, that have or shall come to the hurt, detriment or damage of the said goods and merchandise or any part thereof,” there is attached a typewritten “ rider ” which reads: “ This policy attaches from time the goods, if at the risk of the assured, leave the store, warehouse or factory at initial point of shipment and covers continuously whether made under through or local bills of lading or shipping receipts, until the goods are safely delivered to a store, warehouse or factory at final place of destination, including risk on docks and while in charge of Customs authorities for examination,” no cause of action arises upon proof that after being taken from a warehouse in the city of New York to a vessel in Brooklyn, the goods got wet and were damaged because it snowed and rained during the night they were left upon a pier awaiting shipment.</p>

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

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

<p>Action to recover possession of certain gold bonds.</p>

<p>Pleading — action of libel — incorporation of denial in defense — damages.</p> <p>Where in an action of libel, a defense of justification that in their true and natural import, intention and significance the printed matter “ The ‘ Toughest Kid ’ on the Street ” appearing upon the same page in connection with a picture of plaintiff in a book of which one of the defendants was the authoress and the other defendants, the publishers and distributors thereof, was and is true, and though explaining that said quoted words were used in a different sense than alleged in the complaint said defense contains no denial of the innuendoes of the complaint, the defendants are limited to justification of the words in the sense only in which the complaint alleged they were used, and a demurrer to said defense for insufficiency will be sustained.</p> <p>Where in a partial defense set up in mitigation of damages there is an affirmative allegation that the publication was without malice, a denial theretofore set up in the answer need not be repeated, and a demurrer to said partial defense as insufficient will be overruled.</p> <p>The defendant authoress may plead in mitigation of damages that the other defendants are charitable corporations because, although she does not allege that her own services were gratuitous, yet the circumstances under which she was writing and the purpose and spirit of her work, intend to negative any imputation of malice.</p>

<p>Bill of particulars — office of — motion, for, granted as to consideration for bonds under seal— pleading.</p> <p>The office of a bill of particulars is not only to define and limit the issues, but also to apprise opposing parties of what they have to meet at the trial.</p> <p>Where in an action against a testamentary trustee to recover upon a bond, one of a series, in and by which his testator about thirteen years before he died did covenant for himself, his heirs, executors, administrators and assigns, to pay three months from the date of his death, a certain sum with interest to the wife and children of his cousin and to the survivor of them, etc., the answer alleges that though defendant was intimately familiar with decedent’s affairs during his lifetime and associated with him in business, neither he nor the decedent’s wife or children nor any of decedent’s close relatives or business associates ever knew or heard of said bonds until several years after decedent’s death when they were presented for payment, defendant’s motion for a bill of particulars of the actual consideration for the bonds will be granted as against an objection that the bonds being under seal a consideration was presumed.</p>

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

<p>Action to foreclose a mortgage upon real property.</p>

<p>Partnership — when executor of deceased partner may not maintain action at law against surviving partner — pleading — when motion for judgment on the pleadings granted.</p> <p>Upon the dissolution of a partnership by the death of one partner, his executor may not maintain an action at law against the surviving partner to recover the deceased partner’s interest unless there has been an agreement as to the amount due him, or an account stated and balance struck and agreement to pay, express or implied, and a complaint which does not plead facts showing that plaintiff is entitled in equity to an accounting and payment of the amount found due thereon, is subject to demurrer and defendant’s motion for judgment on the pleadings will be granted, with leave to plaintiff to amend the complaint.</p>

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

Motion to compel the chairman of the executive committee of the Republican party of Kings county to place the name of Charles M. Hall on the roll as a member from the first assembly district of Kings county.

<p>Schools — civil service — janitor-engineer — when right to maintain mandamus proceeding is not defeated by failure to appeal to the commissioner of education — Education Law, § 890.</p> <p>An appeal to the commissioner of education is the exclusive remedy only in cases where the decision of the board or other body involves the exercise of discretion in matters clearly within the jurisdiction of such body or board.</p> <p>Petitioner, a duly licensed janitor-engineer, assigned to duty as such in one of the public schools of the city of Brooklyn, N. Y., refused to abide by an order of the supervisor of janitors, confirmed by the board of education, purporting to transfer him from said school, at a greatly reduced salary, to another school not requiring the services of a janitor-engineer and where the services required of the petitioner could be performed by an ordinary janitor, a lower and different position than janitor-engineer. Upon an application for a writ of mandamus to compel the board of education to rescind its action in making such transfer, on the ground that petitioner’s removal from his former position without charges having been preferred against him and without a hearing, was in violation of both the Education Law and the Civil Service Law, held, that petitioner’s right to maintain the proceeding could not be defeated simply because he had not first taken an appeal under section 890 of the Education Law to the commissioner of education from the order made by the local board.</p> <p>While the denials of the respondent preclude the issuance of a peremptory writ, an alternative writ will be granted.</p>

<p>Depositions — circumstances under which an order may he made for examination of witnesses before trial — order for such examination vacated — Code Civ. Pro. § 872(5).</p> <p>Where an examination before trial of a witness not a party is applied for on the ground of “ special circumstances ” as that term is used in section 872(5) of the Code of Civil Procedure, the order should be sparingly granted upon a well-grounded apprehension that the examination of the witness cannot be had at the trial, and only when it is necessary to prevent a failure of justice.</p> <p>Where though in an action against a railroad company to recover for personal injuries all that plaintiffs urge to sustain an order for the examination before trial of two yardmasters of the defendant would be sufficient ground for such an examination of the defendant, but it is not made to appear that plaintiffs are in danger of losing the testimony of said witnesses upon the trial or that to deny the privilege of the examination asked for would end the plaintiffs’ case, a motion to vacate said order will be granted.</p>

On reading the annexed affidavit of Godfrey Goldmark, sworn to herein on January 9, 19C6, and the pleadings thereto annexed, and on motion of Steele, De Friese & Frothingham, attorneys for the above named plaintiff, it is Ordered that Louis Pothoff, as President of the above named defendant, be examined, and his deposition be taken, pursuant to section 873 of the Code of Civil Procedure, and for that purpose he appear before me, at a Spec'al Term of this court to be held at…

<p>Stipulations — when client may and may not be relieved from attorney’s stipulations — jurisdiction — accounting — executors and administrators.</p> <p>Where it is not made to appear that a stipulation entered into by the attorney of an administratrix, upon the trial of objections to her account to the effect that, for the purpose of division of the estate, certain corporate stock should be •charged to her as if sold at 142 on the day of said trial, was unreasonable or such a surrender of the rights of the administratrix as to constitute an abuse or gross violation of them, and she permits the other next of kin to rely upon its terms and to become inactive with regard to such stock during a period of further depreciation in its value, her motion to be relieved from the stipulation upon the ground of the attorney’s want of authority to make it, and that she never approved his action in regard thereto, and to strike the stipulation from the record, will be denied-</p> <p>Where a further stipulation entered into by said attorney several months later by the terms of which objections to the allowance of commissions to the administratrix were sustained, all other objections withdrawn and certain sums specified in the maximum as allowances for the parties for services of counsel, including an allowance for the services of the attorney for the administratrix, and among the objections so withdrawn was one of several payments aggregating $5,000 paid to the attorney for the administratrix for services to the estate, and upon the filing of such stipulation several months later it was immediately disaffirmed by the administratrix and a supplemental account filed through another attorney appearing for her and who has since been substituted as her attorney of record, her application to be relieved from said stipulation made upon the same ground as regards the former stipulation will be granted except so far as it may be affected by the first stipulation.</p>

<p>Motion to amend order framing issues for a jury in a contested probate proceeding.</p>

<p>Application by administrator for an order directing Edwin E. Powell to turn over to him certain moneys.</p>

<p>New trial — in Surrogate’s Court — application to vacate decree of ■ probate denied — wills — appeal.</p> <p>An application to vacate a decree of probate and for a new trial must be made upon a 'case and exceptions.</p> <p>Where the application is made upon the affidavit of the attorney for the contestants and the technical objection is raised, the application will be denied.</p> <p>Apart from said technical objection the application herein considered, and denied upon the merits.</p>

<p>Surrogate’s Court — when decree of probate properly directs that leéj ters issue — executors and administrators — trial — wills — when motion to amend decree denied — Code Civ. Pro. § 2566.</p> <p>Under section 2566 of the Code of Civil Procedure it is only when written objections to the issuance of letters testamentary arc filed, and the real trial is on that question, that a decree of probate should not direct the letters to issue.</p> <p>Where the surrogate of New York county in conformity with the practice prevailing in that jurisdiction for nearly three hundred years, upon entering a decree in a contested probate proceeding, inserts a direction for the issuance of letters testamentary to the nominated executors, a motion to amend the decree by striking therefrom such direction, will bo denied.</p>

<p>Application by an executor and trustee under the will of deceased for the construction of certain parts of the will.</p>

<p>Application for allowances.</p>

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

<p>Title — when application for registration of, granted — deeds — statutes — Land Title Registration Act, as amended in 1918 — Real Property Law, §§ 370-435.</p> <p>Where upon a petition under the Land Title Registration Act (Real Prop. Law, §§ 370-435), as amended in 1918, for the registration of title to certain lands of which petitioner and his predecessors in title had been in possession for some forty years, it appears that though during part of that period the deeds recorded described a plot one foot and eleven inches less in depth than the actual depth of the property, which was ninety-nine feet and eleven inches, petitioner’s possession and claim of title was to the fee of the entire property, the application will be granted, due notice thereof having been given, as provided by statute, to all persons claiming under one through whom a possible claim of title was derived.</p>

<p>Contracts — what is a maritime contract — insurance (marine) — ships and shipping — jurisdiction — admiralty — res adjudicata.</p> <p>While an agreement to procure insurance on a boat, standing alone, is not a maritime contract or within the jurisdiction of a court of admiralty, yet where it is a part of the contract of hiring of the boat, which is a maritime contract, it is cognizable by the admiralty court so far, at least, as it would constitute a defense to an action on such contract.</p> <p>Where as part of the contract of the hiring of a boat defendant agreed that it was or would be insured for plaintiffs benefit, the decree of a court of admiralty awarding damages to defendant herein against plaintiff herein for injury to the boat, which was not insured, while in possession of the plaintiff under the contract of hiring, is res adjudicata in an action to recover the damages plaintiff was obliged to pay because the boat was not insured.</p>

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

<p>Contracts — breach of — meaning of “full requirements for one year”— damages — ■ judgment in favor of plaintiff granted.</p> <p>On May 1, 1915, defendant agreed to furnish plaintiff “ full requirements for one year” of a certain brand of “ Porto Rico Feed Molasses” at ten cents a gallon, and during the first five months did furnish each month from 21 to 34 barrels, but about the middle of October, 1915, prompted by the war conditions and facing a rapidly rising market, it wrote plaintiff a letter in which, after referring to the existing situation, it stated its willingness to protect plaintiff up to 843 barrels, the amount shipped out on orders under the contract of the year before, which was in exactly the same form as the present contract. Plaintiff’s letter in reply indicated that he did not approve of defendant’s suggestion and, though he refused to agree that defendant should not be called upon to increase more than fifteen per cent over the amount ordered by plaintiff, during the previous year, the contract relation of the parties continued until the amount ordered and received was more than said fifteen per cent and largely in excess of any amount ordered by plaintiff in any one year during the time the parties had dealings. On February 12, 1916, defendant wrote a letter to plaintiff, informing him that up to that time he had withdrawn 964 barrels, approximately the fifteen per cent, and that in the circumstances defendant considered the contract completed and that on any further orders based on present market value, from twenty to twenty-five cents a gallon, it was entitled to the advance in price. The ruling market price of the kind of molasses called for in the contract from Febru- ■ ary 12, 1916, after which defendant refused to make further delivery, to May 1, 1916, had not been less than twenty cents per gallon. During the last three months covered by the contract, plaintiff ordered 2,773 barrels, 727 more than in the four years next preceding the contract. In an action to recover, for the alleged breach of the contract, the difference between the contract price per gallon and the market price, aggregating $15,251, held, that while defendant was under no legal obligation to deliver an unlimited amount of molasses, plaintiff was entitled to receive after February 12, 1916, so much as was actually required to meet the reasonable, ordinary and fair demand of his business, and his damages amount to $5,351, for which amount judgment in favor of plaintiff may be entered.</p>

<p>Verdict — motion to set aside granted — evidence — negligence.</p> <p>While the violation of a city ordinance which requires an elevator operator to be sixteen years of age creates no cause of action, it is some evidence of negligence.</p> <p>The evidence and instructions given to the jury in an action to recover for the death of plaintiff’s intestate resulting from a passenger elevator accident in defendant’s apartment house, where a boy under sixteen years of age was employed as the operator of the elevator, considered, and a motion to set aside as against the weight of evidence a verdict in favor of the plaintiff granted.</p>

<p>Mandamus — when application for a peremptory writ of, will issue — municipal corporations.</p> <p>Where by the return to an application for a peremptory writ of mandamus directing municipal authorities to pay the surety of a contractor for the construction of a water system of a city, a certain sum alleged to be due and owing to the petitioner, it is admitted that the chamberlain of the city has in his hands, held and set apart, said sum of money resulting from the sale of bonds of the city, the issuance of which was approved by the people at a special election, authority for which was given by the common council under an estimate by the engineers of the water board certifying that said sum was due and owing to the petitioner, the writ will issue.</p>

<p>Mandamus — when writ of, will issue — power of public service commission to determine rates of fare within the city of Buffalo — municipal corporations — street railways.</p> <p>The public service commission, second district, has power to determine the maximum rates of fare established by statute for the transporting of passengers in and about the city of Buffalo, N. Y.</p> <p>Where, therefore, in a proceeding instituted before the public service commission, second district, upon the complaint of the city of Buffalo, N. Y., against a railway company, said commission refuses to receive the answer of the railway company on the ground of want of power to determine the rates of fare within said city in excess of five cents, a writ of mandamus will issue directing the commission to receive the answer and proceed to a determination of the question involved.</p>

<p>Venue — when motion to change place of trial for convenience of witnesses will he granted — motions and orders — Code Civ. Pro. §§ 984, 987.</p> <p>Section 984 of the Code of Civil Procedure, which provides that an action to recover damages for an alleged breach of contract must be tried in the county in which one of the parties resided at the commencement of the action, is qualified by section 987 of said Code which authorizes a change of venue for various reasons,, among others, for the convenience of witnesses and to promote the ends of justice.</p> <p>Where upon a motion to change, for the convenience of witnesses, the place of trial of an action to recover damages for breach of a contract, made in the city of New York, for the transportation of certain oil cake from New York to Rotterdam, Holland, it is not disputed but that the convenience of witnesses will be served by granting the motion, and the moving papers make it clear that it will be necessary for defendant not only to call twenty-seven witnesses from New York and vicinity but that it would be a hardship to require most of them, some of whom are presently engaged in important work for the United States government, to take up their residence in the city of Buffalo during the trial of the action, an order will be granted changing the place of trial to the county of Bronx.</p>

<p>Motion by plaintiffs for a review and correction of the taxation and retaxation of costs.</p>

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

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

<p>Wills — when probate decreed — what is sufficient to establish probate — evidence in probate proceeding of an instrument purporting to be the will of one who was killed in military service considered.</p> <p>The evidence in a proceeding for the probate of an instrument in writing purporting to be the last will of the one who prepared it before his departure to France where he was killed while in the military service of the United States, considered, and held, that publicaton of said paper, duly witnessed by a man and his wife, old friends of the alleged testator and of the proponent, his fiancée, though it had no attestation clause, was sufficiently established and probate should be decreed.</p>

<p>Action for rent.</p>

<p>Action to recover an inheritance tax and to enforce a lien.</p>

<p>Demurrer to separate defenses and counterclaims set up in the answer.</p>

<p>Stocks — negotiability of certificates of, by indorsement — who entitled to be regarded as legal and equitable owner of the certificates — negotiable instruments — Personal Property Law, § 168.</p> <p>The negotiability of certificates of stock by indorsement and delivery was expanded by the Personal Property Law as amended in 1913.</p> <p>Where certificates of stock issued in the name of a firm were indorsed and delivered by it to the defendant bank as collateral for a loan, the legal title to the certificates is in the defendant, and though in an action for reclamation of the certificates, the plaintiff, as between it and said firm, was entitled to be regarded as the legal and equitable owner of the certificates, section 168 of the Personal Property Law, upon which the action was based, precludes any recovery against the defendant.</p>

<p>Demurrer to complaint in an action for libel.</p>

<p>Action upon a policy of life insurance.</p>

<p>Bail — when surety on bail bond may recover upon implied agreement of indemnity — criminal law.</p> <p>A surety on a bail bond given in a criminal action may recover from the defendant upon an implied agreement of indemnity, the amount the plaintiff was obliged to pay because of defendant’s failure to appear.</p>

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

<p>Pleading — sufficiency of verification by foreign corporation — when return of answer on ground of defective verification justified — a notice returning defective pleading must be specific — Code Civ. Pro. § 525(3).</p> <p>Where an answer is returned on the ground that it is a nullity the defendant may either move to compel its acceptance or wait until judgment has been entere'd or applied for, and then make the appropriate motion.</p> <p>Where the complaint of a foreign corporation contains not allegations upon information and belief, *a verification made by|j its president in the form usually employed by a party, is proper^ and calls for a verified answer.</p> <p>Within a reasonable time after the return of the answer to such a complaint, on the ground that it was not properly verified by defendant’s attorney under section 525(3) of the Code of Civil Procedure, another answer was served in time, the verification of which was good under said section of the Code of Civil Procedure but for the fact that statements therein disclosed that the attorney making it did not have personal knowledge .of the matters alleged, and all the denials in the answer were upon information and belief. Held, that the return of s’aid answer on the ground of defective verification was justified. '</p> <p>A notice returning an answer because improperly verified, should specify the particulars wherein the verification was defective, and the mere statement that the verification “is defective and the same is not verified in compliance with the provisions of the Code of Civil Procedure ” is insufficient, leaving the situation the same as though the answer had not been returned.</p> <p>Pleaders who insist upon strict compliance with the rules of practice must follow the same themselves.</p>

<p>Default — costs as a penalty in opening default.</p> <p>Where an inquest has been taken on a counterclaim, the court may make it a condition of granting a motion to open the default, that plaintiff pay to defendant the amount of costs taxed upon the entry of the judgment by default and the costs of the motion, the payment of which is a penalty, and is not the payment of the costs which a party may become entitled to if successful in the action.</p>

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

<p>Action to recover upon a benefit certificate.</p>

<p>Objections to report of a referee.</p>

<p>Application for an order to show cause.</p>

<p>Appeal from the report of the transfer tax appraiser and order fixing the tax.</p>

<p>Damages —what deemed to he liquidated and not a penalty — contracts — when motion for a new trial denied.</p> <p>The damages for the breach of a contract to pay money are fixed by law and an agreement to pay greater damages is regarded as a penalty.</p> <p>The damages likely to result from the breach of a contract to render personal services are uncertain in amount and the parties have the right to say how much shall be paid as compensation to the party injured by a breach of the contract, and where they have done so the amount fixed by them will not be diminished unless grossly disproportionate.</p> <p>Defendant, upon engaging to give his entire time and attention as a designer in plaintiff’s factory for a year at a weekly salary of $130, agreed not to associate or interest himself in any other business and in ease of his failure to fulfill his part of the contract, to pay on demand $1,000 as liquidated damages. In an action to recover said amount based upon his refusal to enter upon the performance of the contract and his employment with another, in a similar business, the court directed a verdict for plaintiff in the full amount claimed. Upon denying the motion for a new trial held, that said amount was to be deemed liquidated damages and not a penalty, and was not so excessive, taking into consideration the salary, as to shock the moral sense.</p> <p>The amount of damages having been fixed by the parties plaintiffs were under no legal obligation to prove the amount of damages sustained by them by reason of defendant’s breach of the contract, as none such were involved.</p>

<p>Contracts — husband and wife — when plaintiff not precluded from a recovery in an action upon a separation agreement — counterclaim — appeal.</p> <p>Where the payment of the sums agreed to be paid by a husband under a separation agreement is not conditioned upon the wife not commencing any action, the fact that she sued for a separation and was erroneously awarded counsel fees and alimony in a sum greater than provided by the separation agreement, does not avoid it or exonerate the husband from the payment of the sums stipulated to be paid.</p> <p>In order to exonerate the husband from his obligation to pay the amount agreed upon for his wife’s support, a violation of the terms of the agreement by her must be in bad faith and it must be determined as a question of fact whether any such alleged violation was committed without justification or maliciously or has been repeated so as to indicate intentional annoyance to the husband, or whether there has been a breach of a substantial part of the agreement so as to materially affect the rights of the husband thereunder, and if not found to be of that character, a provision for the support of the wife will be upheld and she may enforce the same by an action to recover what is due her.</p> <p>The Appellate Division upon reversing a judgment in favor of the wife in her action for a separation, held that the evidence established that there had been no repudiation by defendant of the separation agreement and the order of reversal recited that the agreement was in full force and directed the dismissal of the complaint without costs. In an action to recover the amount due under said agreement, which, though providing that it should become void “if either party commits any act which would entitle the other to a decree of divorce or if there should be a reconciliation ” did not provide that no action should be brought by either party against the other, held, that as it appeared that the action for separation was not brought maliciously or with intent to annoy or molest the defendant and that plaintiff believed in good faith upon the advice of counsel that she had a right to maintain such action because of what she and her counsel believed was a breach of the separation agreement by defendant, plaintiff was not precluded from a recovery herein.</p> <p>Though one of the terms of the agreement was that neither party should molest the other, neither the fact that plaintiff, by a letter to defendant couched in polite language, asked for a meeting, that she visited a friend of both, which the agreement did not forbid, nor the fact that she once complained to the head of the department in which defendant was employed regarding his failure to keep the separation agreement, was sufficient ground for defeating a recovery in the present action.</p> <p>The Appellate Division having held that plaintiff had no right to maintain the action for separation, the counsel fee allowed her therein will be allowed as a counterclaim and deducted from the amount due plaintiff under the separation agreement when the present action was commenced, but a counterclaim for the amount paid by defendant to his attorney for services and disbursements in the separation action will be disallowed, as the claim therefor did not arise out of the separation agreement.</p> <p>The Appellate Division having also decided that the allowance of any alimony or alimony in excess of that provided by the separation agreement was improper, defendant was entitled to counterclaim for the difference between the sum stipulated in the agreement to be paid monthly and the larger amount allowed by the Special Term as alimony, and paid by defendant until the judgment was reversed.</p>

<p>Trusts — when a parol trust or trust ex maleficio are not established — evidence.</p> <p>Assignments — ratification of — action to impress a trust upon certain personal property — consideration — when judgment for dismissal of complaint upon the merits granted.</p> <p>A trust ex maleficio can be established only by evidence which is clear, definite and unequivocal in character.</p> <p>A parol trust cannot be engrafted upon a written instrument transferring certain personal property, which is not only absolute in its terms but distinctly and unequivocally declares the purpose and intention of the transferrors, in the absence of some proof of fraud, mistake or undue influence.</p> <p>In an action by residuary legatees to impress a trust upon certain personal property which the testator and his wife by a written .assignment transferred to defendant, his favorite niece, who was his executrix, lived in his family and out of the income of the assigned property supported testator’s widow so long as she lived, which assignment was ratified and confirmed by the heirs at law of the testator, evidence considered, and held, that under said assignment defendant took the entire beneficial interest in said personal property for value received and in consideration of love and affection, and judgment in her favor for a dismissal of the complaint upon the merits with costs is granted.</p>

<p>Proceedings on the judicial settlement of' the account of the public administrator.</p>

<p>Proceedings on the judicial settlement of the accounts of executors.</p>

<p>Action to set aside deeds to real estate.</p>

<p>Mortgages — infants — when order authorizing trustee of life estate and special guardian of infant remaindermen to make a mortgage binds after-born children.</p> <p>At the time a proceeding for leave to mortgage certain real estate was taken, the entire remainder vested in certain children, then born, subject to opening up to let in after-born members of the same class, and an order was granted authorizing the trustee representing the life estate and the special guardian representing the infant remaindermen then living, to make the mortgage. The surplus moneys arising upon the sale in foreclosure of the mortgage are now held by the trustee. Held, that in an action to determine the interests, if any, of infants born after the proceeding for leave to mortgage, in which their contingent interests were necessarily recognized though not specifically mentioned, the present owner of the property was entitled to an adjudication that said infants had no interest whatever in the premises.</p>

<p>Sales — breach of contract — delivery by installments — measure of damages — Personal Property Law, §§ 130, 148 (added by Laws of 1911, chap. 571).</p> <p>Where a contract for the sale of goods to be delivered in installments during March and the succeeding five months is silent as to the quantities of the installments, the time of the default in delivery, under section 148 of the Personal Property Law, added in 1911, fixes the date when the damages for the loss thus occasioned are to be measured.</p> <p>Under a contract for the sale of 1,000 pieces of silk to be delivered during March and the succeeding five months, “ or sooner if possible,” payments were to be made on the tenth of each month for all goods delivered during the previous month. On July sixteenth defendants by letter consented to pay an increased price of ten cents per yard upon condition that the balance of their order for 1,000 pieces was delivered “ according to contract,” and if not so delivered then the “ original contract as to the price on balance of merchandise not delivered is to remain in full force and effect and this modification in price is to be invalid; and in all other respects it is understood that our original contract continues.” Neither by agreement nor act of the defendants was the time of performance extended, and deliveries made thereunder and in September aggregated about 361 pieces. On October tenth, in consequence of a dispute, no further deliveries were' made, and in an action to recover the price of the goods previously delivered the defendants, who as they testified were continuously demanding more goods, pleaded a counterclaim for damages resulting from plaintiff’s failure to perform the contract. Held, that as the evidence would have justified a finding that defendants had complied with section 130 of said Personal Property Law, added in 1911, it was properly left to the jury to determine how many pieces should have been delivered during each month, how many were, in default monthly and to fix the damages accordingly.</p>

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

<p>Inspection — when motion for an inspection of books of foreign corporation in another state will be granted — contracts.</p> <p>Where in an action to recover commissions due under a contract with defendant, a foreign corporation, by which plaintiff was to receive, besides a salary, a certain percentage on all sales in a certain territory, the plaintiff has no knowledge as to the amount thereof, an order for an inspection of defendant’s books, though they are at its main office in another state, will be granted, with the provision that defendant at its election produce its books or submit sworn copies of entries therein relating to the matter in controversy.</p>

<p>Specific performance — when plaintiff entitled to judgment of — contracts for sale of real estate — evidence — pleading — vendor and purchaser.</p> <p>Where by the terms of a written contract for the sale of four certain lots the vendor did not agree to anything concerning a bulkhead surrounding the land and the answer in an action for specific performance pleads neither fraud nor mistake, parol evidence that plaintiff agreed to repair the bulkhead is inadmissible.</p> <p>Under such a contract the vendor is deemed in equity to be the trustee of the title for the vendee and he, the trustee of the vendor for the purchase money, and the interest of the vendee in the contract is real estate, and where the evidence shows that the washing away of part of the rear of two of the lots immediately adjacent to a bay was not caused by any fault or neglect of the plaintiff and that the other lots remain in substantially the same condition as when the contract was made, the vendee must bear the loss arising from depreciation in value and other disadvantages res periit domino, and plaintiff is entitled to judgment.</p> <p>Where the contract specifically provided that an annual charge of four dollars a lot should be paid and devoted to the maintenance of roads, paths, parks, etc., as the vendor should determine, a contention that such charge was for use in maintaining the bulkhead is untenable.</p>

<p>Motion for a retaxation of costs.</p>

<p>Motion to confirm report of referee.</p>

<p>Motion for a retaxation of costs.</p>

<p>Motion to vacate an injunction.</p>

Application under section 2734 of the Code of Civil Procedure by a new administrator for an order directing that all property belonging to the estate be turned over to him.

<p>Bailments — hiring of dredge — no implied warranty that a particular thing shall be reasonably fit for the purposes for which it is hired — trial — erroneous charge.</p> <p>Upon the letting of a particular dredge, not examined by the hirer and about the condition of which no question is asked, there is no implied warranty that it is in reasonably good working condition and a charge to the jury to the contrary is erroneous.</p> <p>In an action for the amount agreed to be paid and for negligence in the use of the dredge, a counterclaim for breach of an implied warranty that the dredge when hired was in reasonably good working condition was dismissed, and the case was given to the jury upon plaintiff’s claim and under a charge, to which defendant excepted, that the law implied that in the letting plaintiff warranted that the dredge was reasonably fit for the purpose for which it was hired. Held, that the charge was erroneous and a judgment entered on the verdict in favor of defendant will be reversed and a new trial ordered.</p>

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

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

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

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

Appeal by the plaintiff from, an order of the Municipal Court of the city of New York, borough of Manhattan, ninth district, granting a motion for judgment on the pleadings.

<p>Appeal from a judgment and also an appeal from an order of the City Court of the city of New York, denying plaintiff’s motion to be relieved from the effect of a stipulation signed by her attorneys and to permit the parties to offer evidence on the points covered by such stipulation.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, in favor of the plaintiffs, and from an order denying defendant’s motion to set aside the verdict and for a new trial.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, entered on November 6, 1918, for $163.</p>

<p>Title — registration of, to real property — failure to give notice as required by statute — application denied — Real Property Law, art. 12, as amended in 1918.</p> <p>In a proceeding for the registration of a title to real property pursuant to the statute (Real Property Law, art. 12, as amended in 1918) there was no proof that any notice of the application for the final order and judgment of registration had been given to the attorney-general of the state, although he had entered an appearance, and it affirmatively appeared that no service of a notice of hearing, of any kind, had been made directly upon all persons named in the petition or that it was not possible to give such notice as required by the statute, and that the only notice that the registrar gave or attempted to give was by mailing a registered letter to all persons mentioned in the petition as having or claiming any interest in or lien upon the property or any part thereof, for which the registration of title was sought, and a like notice to the owners of the adjoining property and none of the parties to whom such notice was sent purported to sign the registry receipt. Meld, that the application should be denied.</p>

<p>Motion at Special Term for a new trial after reversal of judgment and reduction of verdict.</p>

Action to bar all claims to an estate in the lands of a father, which would, except for alienage, descend to a daughter.

<p>Motion to direct receiver of cemetery association to sell lands.</p>

<p>Demurrer to a defense in an action to recover a death benefit.</p>

<p>Judgments — when motion to vacate granted — motions and orders — injunctions — statutes — gas companies — Laws of 1916, chap. 604.</p> <p>In a proceeding where it was held that chapter 604 of the Laws of 1916 fixing eighty cents as the maximum charge for gas, did not repeal chapter 125 of the Laws of 1906 by which such price had been limited to one dollar, or supersede an order , made by the Public Service Commission, First District, in 1913, fixing the price at ninety-five cents, a judgment entered restraining the defendant gas company from charging more than ninety-five cents for gas contained a provision for a modification of the injunction, if it were made to appear that a greater charge “has in any manner prescribed by law be.come a lawful and reasonable maximum charge.” Thereafter the Public Service Commission made an order that the defendant might charge one dollar and ten cents. Held, that the act of 1906 was repealed by the statute of 1916 and the order of the public service commission made in 1913 had been superseded and annulled, and that an order amending the judgment so as to permit defendant to charge one dollar and ten cents, though entered by the consent of all parties to the proceeding, was beyond the power of the court to make and a motion to vacate the same is granted.</p>

<p>Constitutional law — statutes — provisions for town meetings in county of Nassau unconstitutional — Town Law, §§ 40, 41; § 588, added by Laws of 1917.</p> <p>The statute (Laws of 1917, chap. 126) by which the Town Law was amended by adding thereto section 588, which provides that after the 3d day of April, 1917, town meetings in the county of Nassau, beginning 1919, shall be held on general election day in odd numbered years, repeals, so far as that county is concerned, sections 40 and 41 of the Town Law which designate the second Tuesday of February as town meeting day, authorize the board of supervisors to name a day between February first and May first, or general election day, and permit the town to change the day to general election day, and so far as the election of supervisors is concerned is a “ local bill" within section 18 of article III of the State Constitution and void.</p>

<p>Pleading — when motion for judgment on the pleadings does not present all questions raised on demurrer — Code Civ. Pro. §§ 488, 547.</p> <p>Jurisdiction — Indians — Peacemakers’ Court of Allegany and Cattaraugus reservations — action to determine title to real property— pleading — Indian Law, § 46 — Code Civ. Pro. § 1638.</p> <p>• While a motion by defendants for judgment on the pleadings under section 547 of the Code of Civil Procedure admits every material allegation of the complaint, it does not present all the questions which may be raised on a demurrer under section 488 of said Code.</p> <p>In an action brought under section 1638 of the Code of Civil Procedure to determine title to real property the complaint alleged that plaintiff, a Seneca Indian residing outside of the jurisdiction of the Peacemakers’ Court of the Cattaraugus reservation of Indians in Chautauqua county, was the owner and in possession, as sole tenant, of the lands described in the complaint, situate on said reservation, and that she has been in possession thereof for more than one year. The answer of the defendants, all of whom are Seneca Indians, pleaded that the court had no jurisdiction over the parties and that xmder section 46 of the Indian Law the Peacemakers’ Court of the Allegany and Cattaraugus reservations had exclusive jurisdiction of the matter in controversy. Held, that the question of jurisdiction over the parties and the subject matter was presented by defendants’ motion for judgment on the pleadings, and that as they stand, the motion should be granted.</p> <p>Though a demurrer to a former amended complaint containing an allegation that plaintiff, as well as the defendants, were Seneca Indians on the reservation, had been sustained, yet, if plaintiff has a cause of action she should be given an opportunity to litigate and allowed to amend the present complaint. The order to be entered on the motion herein to provide that plaintiff, if she so elects, may serve an amended complaint conforming in all respects to the present complaint, but to contain an allegation that plaintiff is not a resident upon the Allegany or Cattaraugus reservations, and in the event of the non-service of such amended complaint judgment on the pleadings for the dismissal of the complaint, with costs, may be entered.</p>

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

<p>Application by Bronx parkway commission for mandamus directing the common council and board of estimate and apportionment of the city of Yonkers to cancel an assessment upon its property for the Bronx valley sanitary sewer.</p>

<p>Joint stock associations — section 1776 of the Code of Civil Procedure applicable to — justice of the peace has no power to amend a summons — pleading — appeal — evidence — judgments — costs — Code Civ. Pro. § 3066(5).</p> <p>A justice of the peace has no power to amend a summons.</p> <p>Where, however, by consent the summons is amended as to the name of the defendant and an answer is filed, the defendant cannot be heard to complain on appeal from the judgment ren- " dered against him.</p> <p>The provisions of section 1776 of the Code of Civil Procedure apply to a joint stock association.</p> <p>Where the allegation of a complaint that a certain company is a joint stock association of which the defendant is treasurer, is not affirmatively attacked by the answer which contains a general denial, and no evidence is given as to the character of the defendant, it will be held on appeal from a judgment in favor of plaintiff that there was no failure of proof in that respect.</p> <p>Where in an action in Justice’s Court the uncontradieted evidence shows that a “ casting ” worth fourteen dollars was delivered to defendant for shipment on a certain day in April; that it should have arrived at its destination the next day but did not until some time in July, the plaintiff, who refused to accept it and testified that it had then no value, is entitled to a verdict for fourteen dollars, and a judgment, which in addition gave an additional amount for special damages without any evidence thereof, must be reduced accordingly and affirmed.</p> <p>A judgment for fourteen dollars' should be permitted to stand upon the theory that the action was for negligence from which defendant was not absolved by a condition of the shipping receipt that plaintiff’s claim should have been made in writing, which was not proven.</p> <p>Under section 3066(5) of the Code of Civil Procedure the judgment being affirmed only in part, respondent was entitled to ten dollars costs and disbursements.</p>

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

<p>Wills — construction of — legacies — when gift payable as a general legacy.</p> <p>A will directed the executor to pay off an $1,100 mortgage upon either of two houses of testator’s sister-in-law, known as Nos. 965 and 967 Herkimer street, Brooklyn, N. Y., in which street testator had lived for many years, out of the first funds available after his death, “ said payment to be a bequest to my said sister-in-law.” Though at the time of the making of the will the sistef-in-law owned no property in Herkimer street, she did own Nos. 963 and 965 Putnam avenue in said city, upon which there was and now is an $1,100 mortgage. Held, that there was a gift to the sister-in-law of $1,100 payable as a general legacy.</p>

<p>Wills — when necessary for witness to sign in presence of testatrix.</p> <p>Where decedent signed a paper purporting to be her will but not in the presence of one of the witnesses, and the witness in question signed it when decedent was not present, and decedent never acknowledged her signature nor identified or declared the paper to be her will to said witness, probate will be denied.</p>

<p>Motion for direction to enter judgment.</p>

Motion to set aside a judgment entered by the clerk upon a statement of confession filed by the defendant without notice to or consent of the plaintiff, and for leave to discontinue.

<p>Application for a writ of habeas corpus.</p>

<p>Trusts — deposits in savings banks in trust — creation and revocation of trust deposits — evidence — wills — executors and administrators — Code Civ. Pro. § 829.</p> <p>A deposit in bank by one in her own name as trustee for another does not, standing alone, establish an irrevocable trust during the life of the depositor.</p> <p>Where the depositor dies before the beneficiary without revoking the trust, or without some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor.</p> <p>Where the depositor, at the time she called in a stranger to draw her will, exhibited three savings bank books and told her they represented deposits of about a certain sum and bequeathed her estate upon that basis, and within a day or two thereafter declared to another witness that she did not want said beneficiary to have any of her money, said declarations of the decedent are admissible as part of the res gestae and establish an affirmative act of revocation or disaffirmance of the trust.</p> <p>The executor, having waived his right under section 829 of the Code of Civil Procedure, a contention that the testimony of the witness who drew the will, which was in favor of the decedent’s estate, should have been excluded, is untenable.</p> <p>A further contention that the decedent, not having revoked the trust in her lifetime, could not do so by will, is without merit.</p> <p>Upon directing judgment in favor of the executor in an action brought against him and one of the savings banks, held, that decedent, by her act, had deprived the plaintiff of any interest in the savings bank account.</p>

<p>Action for partition.</p>

<p>Motion for retaxation of costs.</p>

<p>Municipal corporations — not liable for loss, of property in public bathhouse — bailments — negligence.</p> <p>A city which maintains a bath-house for gratuitous public use is not the bailee of the property of a bather therein, and in the absence of proof of negligence is not liable for the loss of a sum of money taken from the pocket of the bather’s trousers.</p> <p>Where in an action against the city for the loss of the money it appears that plaintiff, after his bath, discovered that his trousers, which he had hung on the hook nearest the door of his compartment, which had no lock, were gone and though he found them in the next compartment, his money was missing from the pocket of his trousers, and it further appears that no sign or notice was posted as to valuables and no place provided for the keeping of money, jewelry and other similar articles and that plaintiff, who had used the bath-house before, and was familiar with its arrangement and operation, had failed to notify the city employee in charge or entrust the money to him, a judgment in plaintiff’s favor will be reversed and a new trial granted.</p>

<p>• Proceedings on the probate of a will.</p>

<p>Summary proceedings — receiver cannot dispossess mortgagor for nonpayment of rent.</p> <p>A receiver pendente lite of mortgaged premises cannot dispossess the mortgagor by summary proceedings for non-payment of rent.</p>

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

This is a suit in equity to establish the rights of the plaintiff and the defendant McGraw, as assignee, under and pursuant to an agreement in writing made and entered into by them on the 22d day of June, 1917, and .to a trust fund deposited thereunder, and for the distribution thereof, and the issues were tried at the Brie Special Term for the trial of issues of fact without a jury for May, 1918.

<p>Wills — construction of — termination of trusts — devise to executors in trust — when “ issue ” means “ children.”</p> <p>Two pieces of real estate devised to executors in. trust, to collect the income after certain payments therefrom, were directed to be divided into as many equal shares as testator should have children born to him and his wife and to hold one share in trust for each child and to pay over to said children respectively the net income of said shares for their respective lives for their support and maintenance “ and upon the death of each child leaving lawful issue him or her surviving his or her share in the said trust estate shall go to and become vested in said issue forever.” If at the death of testator any of his said children should have died leaving lawful issue, the share which under the foregoing provision would have been held in trust for the parent if surviving the testator “shall go to and become vested in such issue share and share alike to him, her or them and to his, her or their heirs and assigns forever.” In" the event of the death of any of the children of testator without lawful issue him or them surviving the share of which, under the said foregoing provision would have been held in trust for the one so dying, “ shall go to and become vested in the survivors or survivor of my said children * * * share and share alike per stirpes and not per capita.” The testator left him surviving eleven children besides sisters, nephews, nieces and grandchildren, and thereafter one of his daughters died leaving her surviving a son and a daughter and her three children. In an action for the construction of the will, held, that the word “ issue ” as used by the testator was to be confined to “ children ” and that the capital of the trust which terminated upon the death of said daughter of testator should be divided between her son and her daughter in equal shares.</p>

<p>Claim for services rendered to a state hospital.</p>

<p>Jurisdiction — claim, dismissed for failure to file in time — Laws of igir, chap, gor — Laws of igra, chap. 521 — State Finance Law, § 4 — Code Civ. Pro. § 264.</p> <p>A claim of the architects who designed and supervised the construction of the State Education Building, for professional services rendered under a contract with the commissioner of education in regard to special furniture and special lighting features and fixtures for the rooms and offices thereof, and who until the completion of the installation of both, represented the department of education, considered, and held, that claimants, having failed within six months from the time of the presentation of their bill to the commissioner of education to file a notice of intention to file a claim, the claim itself, which was not filed until more than two years after its accrual and presentation for payment, will be dismissed on the ground that the court has not jursidietion.</p> <p>The effect of Laws of 1911, chap. 901; Laws of 1912, chap. 521; State Finance Law, 6 4, and Code of Civil Procedure, 5 264, as applied to the claim herein, discussed.</p>

<p>Transfer tax — wills, — failure of trust relating to personal effects when no memoranda or instructions found.</p> <p>Where testatrix bequeathed to a trust company and one E., all her jewelry, wearing apparel, personal effects and household furniture with direction to distribute the same in accordance with her wishes as expressed in memoranda and instructions left with E., but upon adequate search after her death, no memoranda or instructions were found and no instructions were given to E. as to the disposal of said property, the trust sought to be created fails, and the property passing under the residuary clause to a charitable corporation is exempt from a transfer tax.</p>

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

<p>Surrogates — powers of — Code Civ. Pro. § 2490(6) —transfer tax.</p> <p>Surrogate’s Court — when motion to set aside order directing that citation issue to nonresidents denied — appeal — pleading — Code Civ. Pro. § 2518.</p> <p>Where no appeal has been taken from an order fixing a transfer tax, it may be opened and set aside under section 2490(6) of the Code of Civil Procedure, although more than four years have elapsed since the order was entered in due course of procedure.</p> <p>An application by the state comptroller to vacate an order assessing a transfer tax and for a new trial is in effect a continuation of the proceeding originally instituted by the administrator to have such tax assessed, and such application is properly made by petition under section 2518 of the Code of Civil Procedure.</p> <p>Where the order granted on such a petition directing that a citation issue to the persons therein named, who were nonresidents, and that personal service without the state be made upon them, one of whom was the son of the decedent and his administrator, was in accordance with statutory requirements, a motion to set aside said order, the citation and the service thereof will be denied.</p> <p>Where, though decedent’s son was not designated as administrator in said petition, the citation was directed to him as such, and it is apparent from the allegations of the petition, the order that the citation issue, and the recitals of the order as to the service without the state, that the citation was intended for decedent’s son as administrator, and that said order described him with sufficient accuracy and precision, service of the citation in compliance with the order gave him the necessary notice of the application made by the state comptroller.</p>

<p>Accounting — by executors and trustees — trusts — wills — responsibility of trustee in receiving unauthorized investments.</p> <p>At the death of a testatrix her estate was invested almost entirely in securities many of which were not such as trustees are ordinarily justified in retaining as investments, or in investing trust funds. The executors and trustees and the survivor of them were granted a complete discretion as to the retention of the securities in the residuary estate given to them in trust, but as to that portion thereof which after its division into two parts as directed by the will and separately given to a trust company for the benefit of the two grandsons of the testatrix, the will specifically provided that investments of the principal of said several trusts and of trusts for the benefit of testator’s daughters, should the trust company become trustee thereof, should be limited to such investments as trustees are by law authorized to make. Upon the judicial settlement of the accounts of executors and trustees for the benefit of the daughters of the testatrix, held, that the court would not sanction the receipt by the trust company of such part of the trust funds as are not legal investments for trustees but that said trust company must act on its own responsibility.</p>