Volume 107 — New York Miscellaneous Reports

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, after a trial by the court without a jury, dismissing plaintiff’s complaint.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, dismissing the complaint at the close of the plaintiff’s case, after a trial by a judge without a jury.

<p>Taxes — building in course of construction — certiorari — Greater New York Charter, § 88g-a.</p> <p>Section 889-a of the Greater New York Charter which, as amended in 1913, provides that “ a building in course of construction, commenced since the preceding first day of October and not ready for occupancy, shall not be assessed,” must be interpreted in the light of the Building and Tenement House Laws, and a building is no longer “ in course of construction ” when it is completed pursuant to the requirements of law.</p> <p>Where, therefore, the construction of an apartment house was completed in accordance with the laws and plans approved by legal authority, prior to October 1, 1917, at which time all of the apartments were leased and the rent for that month paid in advance without deduction or allowance being made because of an alleged unfinished condition of the building, it is not exempt from taxation though on October 1, 1917, all the steam radiators had not been installed and the connection of many of the gas ranges had not been made.</p>

<p>Actions to foreclose mortgages.</p>

<p>. Action to recover liquidated damages for the nonperformance of a contract.</p>

<p>Title — executors and administrators — when power of sale in executors overrides the whole estate — associations — foreclosure — mortgages — deeds — wills — parties — contracts — Code Civ. Pro. § 1919.</p> <p>A testator devised a one-third interest in certain real estate to his widow, two twenty-fourths to each of his seven adult children and two twenty-fourths to his widow and a son as executors in trust for his two grandchildren, each under the age of fourteen years. The widow having conveyed her interest in the property to the children, they gave a mortgage thereon in which the owners of the interest held in trust for the grandchildren did not join. Thereafter the executors under the power of sale given by the will conveyed the entire premises to one who subsequently conveyed the same subject to the mortgage, and the last grantee conveyed the property to a local union of an unincorporated association subject to the same mortgage. An action to foreclose said mortgage, to which the president of the local union, its grantor and his wife and certain mechanics’ lienors were the only defendants, resulted in a judgment of foreclosure and sale of the premises to one who thereafter received from the grantor of the local union and his wife a quit-claim deed of the property and the title of the purchaser under the sale in foreclosure, if any, was by several mesne conveyances transferred to the defendant herein.</p> <p>In a vendee’s action to establish an equitable lien in an amount representing the down payment, expenses for examination of the title and improvements made on the faith of the contract of sale of said property, held, that while the mortgage covered only twenty-two twenty-fourths of the title of the devisees the entire title was conveyed by the deed given by the executors, consequently their grantee and the grantor of the local union were seized of the entire title subject to the mortgage.</p> <p>The deeds of the local union vested the title in all the members not as tenants in common but as joint tenants with right of survivorship, and even assuming that said members became vested with the title they were not, under section 1919 of the Code of Civil Procedure, necessary parties to the foreclosure action which was properly brought against its president, and all the title of the local union and its members passed by the referee’s deed in foreclosure.</p> <p>The plaintiff was not justified in law in refusing to accept the tender of the conveyance pursuant to the contract of sale on the ground that, as the local union under the Beal Property Law was incapable of taking title the deed to the local union vested the title in the members as individuals, and judgment for the dismissal of the complaint upon the merits is directed.</p> <p>The local union and its members were estopped by the deed under which they acquired the entire fee subject to the mortgage from asserting that it was foreclosed against the association only as .to the proportion of the title which it covered.</p> <p>A contention of defendant that the deed to the local union was a nullity and that by virtue of the quit-claim deed defendant obtained a good and marketable title was not sound in law.</p>

<p>Actioh for a permanent injunction and damages,</p>

<p>Motion for certificate of reasonable doubt after conviction for perjury alleged to have been committed upon the trial for robbery of one Mauphet in the County Court of Queens county.</p>

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

<p>Motion to set aside verdict and for a dismissal of complaint.</p>

<p>Habeas corpus proceedings.</p>

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

<p>Habeas corpus — writ of, to determine right to custody of infant daughter denied — infants — husband and wife — Constitution of the United States.</p> <p>The basic principle in determining the right to the custody of a child of tender years is, what is for the best interest of the child.</p> <p>Upon habeas corpus to determine the right of a father to the custody of Ills seven-year-old daughter, it appeared that the parents since their marriage in 1911 have had considerable marital trouble. In November, 1918, the mother, with the knowledge and consent of the father, who bought the tickets and put her and the child on the train, came to the home of the wife’s parents in Syracuse, N. Y., where they have ever since continuously resided. The father, having on January 25, 1919, wired from Boston that he was very sick, his wife immediately went to him and found that he was not seriously ill. On January twenty-seventh they returned to the home of her parents, occupying the same berth on the way, the same room at night as husband and wife until January twenty-ninth, and on the last day of said month he instituted the present proceeding. Held, that an interlocutory order of the Probate Court of Massachusetts awarding relator the custody of the child, based on a claim that he and his wife were living separate and apart, was not within the “ full faith and credit ” clause of the Constitution of the United States, was not conclusive of the rights of the parents, and the conditions having since changed, was no longer in force or operative.</p> <p>Where apart from any rights of the relator under said order it clearly appears that he is not a suitable person to have the custody of any one, much less the child whose pioper rearing requires nourishment and assistance other than that of paternity, and the language of an interlocutory judgment and the moving papers strongly suggest that relator is not actuated by a desire for the welfare of his child as much as by a desire to annoy her mother, the writ will be denied with costs.</p>

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

<p>Motion for a reargument of an application to compel an executrix to file an account.</p>

<p>Stock brokers — margin accounts — selling out under the “rule” — when not liable to customer of correspondent.</p> <p>Plaintiff carried an account on margin with a firm of stock brokers, which firm cleared through defendants, another firm of stock brokers, who also bought and sold stock on margin for plaintiff’s brokers, carrying the account in their name and not knowing their customers in the transactions. On April 12, 1917, plaintiff directed his brokers to buy 100 shares of stock; they gave the order to defendants who executed it and advised plaintiff’s brokers that the stock had been purchased for their account. On April 13, 1917, plaintiff’s brokers wrote defendants, enclosing check for $1,000 and asking them to credit same to the account of plaintiff against the purchase of the said stock. Defendants immediately notified plaintiff’s brokers that they alone were recognized in the transaction and that the check was placed to their credit, to which action plaintiff’s brokers acquiesced. The check was deposited by defendants but was returned unpaid, plaintiff’s brokers having made an assignment for the benefit of creditors on the afternoon of April 13, 1917, the same day upon which plaintiff had given them his cheek for $800 as margin against the purchase of said stock, which check they deposited to their account. On April 14,1917, defendants sold the said stock on the New York Stock Exchange under the “ rule ” and so advised plaintiff’s brokers. Plaintiff was not notified of the time and place of sale and subsequent to the sale called on defendants to account to him for the 100 shares of stock which he claimed were purchased for his account, which defendants refused to do, claiming they were accountable for the profit in the transaction to the assignees of plaintiff’s brokers. Thereafter plaintiff recovered the $800 which he had paid his brokers as margin from their trustee in bankruptcy. This action is brought by plaintiff against defendants for an alleged breach of contract in the sale of the 100 shares of stock without notice to him. Held, that defendants were never liable to plaintiff; that even if they had been plaintiff having rescinded his contract with his brokers and recovered his deposit of $800 the whole transaction was ended both as to his brokers and as to the defendants.</p>

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

<p>Savings and loan associations — who entitled to maintain an action for rescission and cancellation of certificate — tender—actions — Laws of igio, chap. 126, § 215-d.</p> <p>Plaintiff in 1911, after being informed by the secretary of defendant, a savings and loan association, that deposits in its savings account, which were paying five per cent interest, could not be withdrawn until after one year on sixty days’ notice, deposited $1,000, receiving a certificate therefor which he subsequently cashed without objection on the part of defendant and without delay. Upon making a deposit of a like sum in 1914 he received another certificate upon the face of which, pursuant to section 215-d of chapter 126 of the Laws of 1910, was printed in heavy faced type, “ withdrawable after one year on sixty days’ notice” and upon his calling attention to the fact that the certificate called for “ shares ” he was told he need not worry, that that had no bearing on the ease. Held, that plaintiff was entitled to maintain an action for the rescission of his agreement and a cancellation of the said certificate and of any records or evidence of his apparent membership in the defendant. That he was entitled to recover the amount deposited on receiving said certificate and in the absence of proof that he had received anything from defendant he was under no obligation to make a tender before bringing the suit.</p> <p>The provision of said section 215-d is a limitation not merely upon the certificate holder’s right to withdraw but also upon the power of the association to prevent withdrawal after the expiration of the period stated upon the face of the certificate, and while the language of said provision seems to require a statement negative in form, the affirmative form, “ withdrawable after one year on sixty days’ notice” is the legal equivalent oE the negative form “ not withdrawable until after the expiration of one year on sixty days’ notice.”</p>

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

<p>Wills — provisions of — who entitled to residuary estate — status of adopted daughter as an "heir at law” — adoption — statutes — Laws of 1915, chap. 352 — Laws of 1917, chap. 149.</p> <p>Where by a will made in 1884 the executors and trustees were directed to pay the net income of the residuary estate to testator’s two surviving daughters in equal shares during their joint lives, and upon the decease of either, one-half of said estate was devised and bequeathed to her issue share and share alike, and in the event of there being no such issue, said one-half of the estate was given to the surviving daughter and her heirs forever, and after provision for the payment to her of the income of the remaining half of the estate the will provides that upon her decease said one-half of the estate and all accumulations of interest therein shall be paid to-her issue share and share alike, one who, in 1872, was taken into the household of the daughter of the testator, who survived her sister, .and was legally adopted by her pursuant to chapter 352 of the Laws of 1915, which provided that nothing therein contained in regard to an adopted adult or child inheriting from the foster parent “ applies to any will, devise or trust made or created before June 25, 1873, or alters, changes or interferes with such will, devise or trust, and as to any such will, devise or trust, an adult or child adopted before that date is not an heir so as to alter estates or trusts or devises in wills so made or created,” is an heir of said daughter of the testator within the meaning of the will and as such is entitled to the one-half of the residuary estate held in trust for her foster mother.</p> <p>The statute (Laws of 1917, chap. 149) which amends said statute of 1915 and declares that nothing therein in regard to an adult adopted pursuant thereto inheriting from the foster parent applies to any will, devise or trust made or created before April 22, 1915, etc., applies only to the status of persons adopted pursuant to the statute of 1917, and as that statute is not retroactive it does not operate to change the status of said .. adopted daughter as an “ heir at law ” of her foster mother.</p>

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

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

<p>Deeds — husband and wife — when deed for a valuable and adequate consideration will be sustained as against creditors of grantor—■ marriage — evidence — when gift upheld.</p> <p>Where a deed is made for a valuable and adequate consideration without knowledge of the grantee of any fraudulent intent on the part of the grantor, it will be sustained, irrespective of such intent.</p> <p>Where a debtor made a transfer of real estate in consideration of the agreement qf the grantee to marry him, which she immediately did, and in a judgment creditor’s action to set aside the conveyance as in fraud of creditors, it not only' appears that when the deed was given the grantor had other property which his receiver in supplementary proceedings had taken over but there is no proof that the grantee at the time was aware of the amount of property the grantor held or of the extent of his indebtedness or that he had any purpose in the execution of the deed except to induce her to consent to their marriage, the complaint will be dismissed.</p> <p>Where as to a second cause of action pleaded in the same complaint to set aside the transfer of an automobile, the evidence shows that it was accepted in lieu of an engagement present and without fraudulent intent on the part of the wife, the same conclusion must result and the gift be upheld.</p>

<p>Schools—public education a state function — municipal corporations — board of education of city of New York.</p> <p>Attachment — when warrant of, to compel attendance of a witness, granted—Code Civ. Pro. §§ 854, 855 — Greater New York Charter, § ”9-</p> <p>Public education is a state not a municipal function and no conventional relation of principal and agent exists between a municipality and its board of education which is charged by the state with the administration of its educational system.</p> <p>Where the commissioner of accounts of the city of New York, who under section 119 of the Greater New York Charter is authorized to make examination of the accounts of all elective as well as appointive officers, has undertaken to examine the accounts of the board of education and has issued a subpoena to the auditor of said board to appear and testify upon such examination, but the auditor under the advice and by the direction of the state commissioner of education refuses to obey the subpoena, a motion by said commissioner of accounts for a warrant of attachment to compel the attendance of the auditor as a witness in pursuance of sections 854 and 855 of the Code of Civil Procedure will be granted.</p>

Motions by judgment creditor of mortgagor for a resale in action No. 1 and to vacate judgment and set aside the sale and for leave to come in and defend action No. 2.

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

<p>Motions for alternative writs of proMbition.</p>

Several defendants demur to the complaint on the following grounds: 1. That this court has no jurisdiction of the subject of the action. 2. That plaintiff has no legal capacity to sue. 3. That there is a misjoinder of causes of action. 4. That the complaint does not state facts sufficient to constitute a cause of action.

<p>Contracts — when separation agreement between husband and wife void — dower — consideration — marriage — Domestic Relations Law, § 5i-</p> <p>An agreement to live separate and apart entered into while the parties are living together as husband and wife is an alteration of the marriage and therefore void under section 51 of the Domestic. Relations Law which declares that a husband and wife cannot contract- to alter or dissolve. the marriage or to relieve.him from.his liability to support her.</p> <p>A separation agreement by which a wife at the time forty-eight' years of age, in consideration 'of $8,000 in cash, and $190 a; month for" two years, released- all her - dower interest and relieved her husband, whose net income as a physician is not less than $10,000 a year, from any and all liability for future support, is clearly inequitable and will be set aside though entered into on the part of the wife by the advice of counsel, nor will she be denied relief because she does not account for the $6,000.</p>

<p>Action of replevin.</p>

<p>Condemnation proceedings — when lease of premises is waiver of damages — lands under water — easements — injunctions — Greater New York Charter, § 261.</p> <p>Where a dock company’s right of access to the sides of its' piers over the waters of a ferry slip lying between, was not included in the condemnation proceedings instituted by the public service commission on behalf of the city of New York to acquire title to lands under water in the slip, etc., the dock company, by leasing from the city the lands under water in the slip and agreeing to construct a pier over the same, waives all claim to damages to right of access to its piers and all claim for rental damages from and after the date of the lease.</p> <p>A contention that the lease, having been entered into upon the supposition that the dock company’s easement of access to its piers had been taken by the city and that the dock company would recover compensation therefor, did not •constitute a waiver of the right of access to the piers, held untenable on the ground that the mistake, if any, was one of law as to the proper construction of the description of the property to be condemned, and on the further ground that the dock company has in no way sought to rescind the lease but apparently desires to stand upon it and enjoy its benefits and at the same time recover foe damages on account of the occupation of the waters of the slip.</p> <p>In an action by the dock company for an injunction to restrain the occupation of the slip for the construction and operation of a tunnel of the subway system, only the rental damages for the defendant’s occupation of the slip until the date of said lease based upon plaintiff’s right to use the waters of the slip for access to its piers in the condition in which the slip was at the commencement of such occupation are recoverable, and the evidence being insufficient to enable the court to determine the damage, an interlocutory judgment is granted and a reference ordered to ascertain the damage.</p> <p>Section 261 of the Greater New York Charter relative to the filing of a claim with the comptroller before commencing action, and a notice of intention to sue within six months after the accrual of the cause of action, does not apply to the present action.</p>

<p>Workmen’s Compensation Law, § a, groups 8, g and § 3 (x, 4)—ships and shipping — United States Judicial Code, §§ 24(3), 256(3).</p> <p>While the amendments of 1917 to section 24(3) and to section 256(3) of the United States Judicial Code were intended . to overcome the effect- of the decision in Southern Pacific Com-pony v. Jensen, 244 U. S. 205, by making state statutes which in terms cover maritime workers, valid and enforceable by them as well as by others, said amendments do not give an employee an election of remedies in a state court not given by a statute of the state.</p> <p>Where one met his death while working on a vessel in an occupation included within the purview of section 2, groups 8, 9, and section 3, subdivisions 1, 4, of the Workmen’s Compensation Law, the provisions of said statute making its benefits the exclusive liability of the employer must be effective and there can be no common-law liability.</p> <p>Where the complaint of the administratrix of the deceased against his employer in an action alleging a common-law liability shows that the employment of her intestate brought him within the Workmen's Compensation Law, the plaintiff, in order to succeed, must prove defendant’s failure to furnish the required insurance as provided by sections 11 and 52 of the statute, and where there is no question that defendant had complied therewith, the complaint will be dismissed.</p>

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

<p>Wills — construction of — intention of testator — codicils'— intestacy.</p> <p>The rule that a will or codicil should be so construed as to prevent an intestáey" must be ignored when such a construction would be counter to the testator’s intention as expressed in the instrument.' • . .' ■</p> <p>Decedent, by a codicil to his. will under which his wife, who predeceased him, was substantially his sole legatee, bequeathed all properties standing in his name to his son, except certain stocks and shares given to testator by his wife, which, together with all other properties which might come to him under her will, he directed to be ■ returned to her estate in order that the provisions of her will might be carried out. In terms the codicil -declared that it “shall only be deemed valid in the event that my wife * “ should die before my said wife makes a will after my death * ,F Held, that so far as his will was concerned decedent must be deemed to have died intestate and that by tile codicil he intended to qualify the bequest to his wife under the -will in case she should survive him but should die before making a will, and that the property reverted to the husband or to his next of kin, the wife not having disposed .of the same by will.</p>

<p>Transfer tax—.when no decree will be entered until receipt showing that transfer tax has been paid is produced—.executors and administrators.</p> <p>Where the assets of an estate, certain stock in a real estate company, were appraised at a certain value and the transfer tax fixed, and upon the judicial settlement of the accounts of the executor six years later it appears that without fault or negligence on his part the assets were worthless, and that he had always been in funds for the payment of the tax, no decree will be entered until a receipt showing that the transfer tax has been paid is produced.</p>

<p>Action upon a bond.</p>

Appeal by defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of the plaintiffs against both defendants for $330,

<p>Contracts — breach of — carriers — bills of lading — conversion — judgments — pleading.</p> <p>Where upon a complaint framed for breach of contract to deliver certain goods which defendant admitted were lost through its negligence, practically amounting to a conversion, and conceded liability to the amount of $432, the invoice value as stated in the bill of lading, and it was stipulated that the market value of the goods at the point where they should have been delivered was $1,440, a judgment for the invoice value will be modified by increasing the recovery to said market value with interest less unpaid freght and as so modified the judgment will be affirmed.</p>

<p>Contracts — action for work, labor and services — plumber's registration certificate need only be filed in one borough of the city — insufficiency of defense — Greater New York Charter, § 415(a).</p> <p>In an action by a duly licensed plumber of the borough of Manhattan for work, labor and serv'ce and materials furnished under a contract for plumbing repairs in the borough of Queens, it is no defense that he had not filed a plumber’s registration certificate in the latter borough where the work was done.</p>

<p>Trial — in Municipal Court, city of New York — when order directing trial by jury unauthorized — motion and orders — appeal — Municipal Court Code, §§ 118(2), 155.</p> <p>Section 118(2) of the Municipal Court Code limits the time within which a trial justice may determine whether or not a case should be tried by a jury, to a time either “ before or during the trial.”</p> <p>An order directing a trial by jury in a Municipal Court action, made after the final submission of a ease tried without a jury, is illegál.and unauthorized.</p> <p>A motion by defendant for an order directing plaintiff to pay a jury fee' and a motion by plaintiff to vacate the order directing a jury trial coming on to be heard at the same time, defendant’s motion was granted and plaintiff’s motion denied. Upon the ease being called for trial plaintiff, having refused to pay the jury fee, announced its readiness to proceed without a jury. Defendant’s motion to dismiss the complaint on the ground that plaintiff had failed to comply with the orders of the court was granted. Held, that under section 155 of the Municipal Court Code plaintiff’s appeal from the judgment entered against it brought up for review the several intermediate orders specified in the notice of appeal.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of. Manhattan, seventh district, dismissing the complaint of ' the plaintiff at the close of plaintiff’s case.

<p>Trusts — dividends — corporations — when payment of accumulated unpaid dividends must he regarded as ordinary dividend — pleading.</p> <p>An assignment of certain stocks in trust to receive the dividends and income thereon and pay the same to assignor’s wife, included certain shares of preferred stock, the certificates of which provided that the holder should be entitled to receive from the surplus or net profits of the corporation when and as declared yearly cumulative dividends. About four years after the creation of the trust, the corporation, out of the surplus which it had accumulated before the creation of the trust, paid dividends which had accumulated and remained unpaid in previous years. Upon sustaining a demurrer to the complaint of the creator of the trust praying that he be declared entitled to all dividends paid out of said surplus, held, that under the rule laid down in Matter of Osborne, 209 H. Y. 450, a payment of accumulated unpaid dividends must be regarded as an ordinary dividend within the contemplation of the plaintiff when he created the trust.</p>

<p>Action to restrain defendants’ use of plaintiff’s corporate name.</p>

<p>Depositions — power of surrogate to grant order for examination before trial — wills — when writ of mandamus will issue — Code Civ. Pro. §§ 872 et seq., 2770.</p> <p>By section 2770 of the Code of Civil Procedure all of the provisions of said Code are made applicable to proceedings in Surrogates’ Courts so far as they can be applied to the substance and subject matter of a proceeding without regard to its form.</p> <p>Under section 872 et seq. of the Code of Civil Procedure the surrogate on a contested probate, after the filing of objections and a demand for a jury trial, has power to grant an order for the examination of the proponent of the will before trial.</p> <p>Where the refusal of the surrogate to sign such an order is put upon the ground of want of power to grant it, a writ of mandamus to compel him so to do, will issue.</p>

<p>Statute of Limitations — when extended by absence from the state — actions by or against foreign executors or administrators — Code Civ. Pro. §§ 386, 401 — Code Civ. Pro. § 1836-a.</p> <p>Decedent, while a resident of the state of New York, abandoned his wife there in July, 1896, continued his residence in the state until January 11, 1906, and then became a resident of the state of New Jersey where he died January 11, 1916. Both a cause of action against him for necessaries furnished to his wife in each week after the abandonment and until her death on December 6, 1909, and for her funeral expenses, and one upon decedent’s promissory note dated January 16, 1896, payable six months after date, arose in the state of Rhode Island where they are not as yet outlawed. Held, that under section 1836-a of the Code of Civil Procedure an action on both causes of action was properly brought against the administrator of decedent appointed in New Jersey,</p> <p>The account sued on was not such a one as is covered by section 386 of the Code of Civil Procedure.</p> <p>The claims on the note and for items of necessaries furnished before January 12, 1900, were outlawed.</p> <p>Decedent’s continued absence from the state of New York after January 11, 1906, extended the Statute of Limitations (Code Civ. Pro. $ 401) and plaintiff was entitled to recover for necessaries furnished from January 12, 1900, to December 6, 1909, and for funeral expenses, together with interest on both sums.</p>

<p>Action to establish an easement.</p>

<p>Claim for damages resulting from leakage of water from the Champlain canal into and upon claimant’s adjacent property.</p>

<p>Foreclosure — mortgages — proper practice for terms of sale to contain statement as to condition of title — when referee’s deed should contain special provisions contained in terms of sale.</p> <p>The usual practice in mortgage foreclosures, of stating in .the terms of sale the condition' of the title, when truthfully and fairly done, is to be commended.</p> <p>Where at the time of the entry of judgment in an action to foreclose a mortgage, the holder of the title to the premises under an official tax sale -which antedated the mortgage by a -number of years, though not. made a party defendant, had an . action pending to establish her title as paramount to that of both the mortgagor and the mortgagee, and. since the entry of judgment has been acquired 'by the purchaser on foreclosure, -the referee to' sell may properly insert in the terms .of sale, which were .read, that the- sale was made subject to all. the rights under a certain quit claim deed to the purchaser in the foreclosure action- and also subject to all rights of his grantor, in her action to have her title adjudged paramount to the mortgage.</p> <p>The purchaser on foreclosure having bid in the premises with full knowledge of the claim under the tax title, his motion for an order to compel the delivery of a referee’s deed without and free from any contentions or restrictions and free from any lien or rights of the grantor of the quit claim deed, so far as any reference thereto in said referee’s deed is concerned, mil be denied.</p>

<p>Transfer tax — when gift to private institution not exempt under section 221-c of the Tax Law.</p> <p>A gift to the “ Brooklyn Institute of Arts and Sciences ” from the assets of a decedent, though made by her children within two years after her death, is not exempt from a transfer tax, and an order exempting the same because of the provisions of section 221-e of the Tax Law will be reversed and the report of the appraiser remitted to him for correction.</p>

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

<p>Transfer tax — when interest of non-resident in a New York partnership is subject to — evidence.</p> <p>Where a non-resident decedent, a member of a British firm, was also at the time of his death the owner of an interest in a special partnership organized under the laws of New York by himself and partner in the British firm, and the articles of copartnership of the New York firm provided that upon the decease of any member the “surviving member of the firm shall have the benefit and shall assume the burden of all the rights and liabilities of a deceased member of the firm,” it must be assumed, in the absence of proof of a modification of said provision, that the benefit going to the survivor under' the articles of partnership of the New York firm is for the personal benefit of such survivor, and his interest therein is subject to a transfer tax.</p>

<p>Wills — devise — when there is no suspension of power of alienation — trusts — Personal Property Law, § 15.</p> <p>Testator devised and bequeathed all of his property and the income thereof to his wife for life, with direction that at her death all of the estate should become the property of such of his children as had never married and to his son John. The homestead was to be used in common by the children and the income from the estate was to be used by the executor in defraying all expense incident to the support and maintenance of the homestead. The will then provided that the property should become and be the absolute property of the survivor of such of testator’s children “as have never married and my son John,” and continued: “In the event of any of my said children, now unmarried, marrying, with the exception of my son Edmond F. Stanton, his or her right to occupy the said residence as a home shall then and there cease and terminate, and any rights or benefits to the income from the property, hereby devised and bequeathed, to which such child might otherwise, during his or her life, have been entitled, are hereby forfeited.” Testator left as his heirs at law and next of kin, all of whom are now living, his son Edmond F., three daughters none of whom have ever been married, his son John, who had been divorced, a widowed daughter, two married daughters, all of full age, and three minor grandchildren, children of a deceased son. Upon the filing of an answer to the petition of the special guardian of the grandchildren asldng for a construction of the will, held, that there was no suspension of the power of alienation of the realty nor suspension of ownership of the personal property.</p> <p>That while the giving of the income to take care of and handle created a trust it was not such a trust as would" be inalienable under section 15 of the Personal Property Law.</p>

<p>Domicile1— once established presumptively retained — executors and administrators — when motion to revoke letters of administration denied.</p> <p>A man’s domicile or residence of choice, once established, is presumptively retained until it is shown affirmatively that he either abandoned or changed it.</p> <p>Decedent, born in Westchester county over sixty years ago, where he resided until 1909 when he and his wife took up their residence in another county for a period of two years, removed to Putnam county and lived there for about a year and a half, and then resided in Westchester county, where he registered as a voter from his boarding house, which was his home. After having spent the greater part of the winter of 1916 and 1917 in Westchester county and after having been operated on in a New York city hospital in the spring of 1917, he and his wife lived in the city of New York, and afterwards returned to Westchester county.- In the summer of 1917 he went to Putnam county and lived there with his sister until the time of his death which occurred in a hospital in Westchester county. Held, that in the absence of evidence tending to show that decedent had any intention to abandon his residence in Westchester county, an application to revoke letters of administration granted therein will be denied.</p>

<p>Verdict — when motion to set aside, and for a new trial, granted — actions — damages — contracts.</p> <p>Defendant engaged plaintiff to record her voice for reproduction with records by phonographs, she to be paid for each record which defendant declared satisfactory. After test records had been declared poor and unsatisfactory, defendant declined to record further selections with orchestra, until plaintiff made a satisfactory test with piano accompaniment, to which request she failed to respond. In an action to recover damages for preventing performance, held, that as defendant, instead of exercising its right to discharge plaintiff, had evidenced its good faith by offering her, but without avail, an opportunity to record with piano accompaniment, a motion to set aside a verdict in her favor and for a new trial will be granted, except as to certain items of expense.</p>

<p>Supplementary proceedings — when order for examination of judgment debtor may be granted under section 2435 of the Code of Civil Procedure.</p> <p>Under section 2435 of the Code of Civil Procedure as it now stands, an order for the examination of a judgment debtor in proceedings supplementary to execution may be granted at any time within ten years after the return, wholly or partly unsatisfied, of an execution issued by permission of the court, and a motion to vacate such an order will be denied and the judgment debtor directed to appear for examination.</p>

<p>Appeal by defendant from a judgment of the City Court of the city of New York, in favor of plaintiffs, entered upon the direction of a verdict, and from an order denying a motion for a new trial..</p>

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

<p>Contracts — agreement between alien residents to buy foreign exchange legal.</p> <p>An alien enemy who resides in this country may enter into contracts and sue like a citizen.</p> <p>An agreement by which an alien resident here agreed to buy from another alien resident engaged in the business of buying and selling foreign exchange in the city of New York 5,000 marks, German money, is legal though the time agreed upon for performance was after the declaration of war between this country and Germany.</p>

Appeal by defendants from a judgment of the City Court of the city of New York, rendered in favor of plaintiff, after a trial before the court and a jury.

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

<p>Contracts — refusal to accept goods — non-compliance with shipping instructions.</p> <p>Where a seller’s action to recover the purchase price of certain soda ash is brought upon the theory that the plaintiff had performed the contract on his part, but he fails to show compliance with the instructions of the buyer to ship the goods to him at Barclay street station or some other downtown station at the city of New York, and there is no evidence of waiver of the place of destination, defendant was justified in his refusal to accept a tender of the goods at Jersey City, and a judgment in favor of the plaintiff will be reversed and a new trial ordered.</p>

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

<p>Contracts — breach of — waiver — termination of agency — commissions — parties — verdict — sales — evidence.</p> <p>By a contract giving them the exclusive agency for the sale on commission of defendant’s automatic writing machines within a certain territory, plaintiffs obligated themselves to devote their entire time and effort to the business, to sell a certain number of machines a month and to deposit a certain sum as a guaranty of performance on their part. At the end of the first two months the plaintiffs having sold less than the required number of machines each month, defendant forbade their taking any orders for machines to be used in “public service,” on the ground that another person had the exclusive right to such use of the machines, although no mention thereof was made in the contract with plaintiffs. The termination of the agency some months later was entirely agreeable to defendant, which not only had waived the plaintiffs’ failure to sell the number of machines required by the contract and acquiesced in one of the plaintiffs dropping out of the business, but had repaid in full the balance of plaintiffs’ deposit. In an action to recover commissions earned before the termination of the contract and for damages alleged to have been occasioned by defendant’s breach thereof in preventing sales for “public service ” and in other minor acts contributing to the loss of business, the evidence warranted a finding that plaintiffs had never agreed to the limitation of sales imposed by the defendant. Held, that a verdict in separate amounts on each cause of action, without direction of the court, must be treated as if the jury had found for a single sum on both causes of action and defendant’s motion to set aside the verdict and for a new trial will be denied.</p> <p>The plaintiff who had withdrawn from the business was a proper party to the action, as he was damaged by defendant’s breach of the contract as well as his co-plaintiff.</p> <p>While the conduct of plaintiffs in continuing the business operated as a waiver of defendant’s alleged breach of contract it did not preclude a recovery of damages on account of such breach.</p>

<p>Releases — when general release not a bar in an action in conversion — contracts — damages.</p> <p>Plaintiff having taken a contract from the French government for the manufacture of bayonet grips made a contract with defendant to manufacture 100,000 of them. The French government cancelled its contract with plaintiff, which in turn, after about 30,000 of the grips had been delivered, cancelled its contract with defendant, who claimed as damages, prospective profits, metals on hand and depreciation on other metals used by it outside the contract, to all of which plaintiff made no objection except as to the item of prospective profits, and its offer to .settle if that item was reduced one-half was rejected and defendant herein brought his action for damages. Plaintiff then offered to settle for $8,500 which defendant agreed to accept provided mutual general releases would be exchanged at the time of settlement. Plaintiff accepted the modification unqualifiedly, the $8,500 was paid and general releases exchanged. Upon plaintiff asking a few days later for the return of the metals defendant’s attorney replied that the release of his client by the plaintiff barred its claim. In an action in conversion for the value of the metals arising out of the settlement of defendant’s action for damages, held, that plaintiff was entitled to their possession; that the obligation to return them grew out of the negotiations looking to a settlement of the controversy between the parties, was a part thereof, and that the release from plaintiff to defendant did not bar it.</p> <p>Plaintiff was entitled to judgment for the market value of the metals on the date of the demand for their delivery, with interest.</p>

<p>Action to recover damages for breach of a contract.</p>

Motion to dismiss indictment, made after the granting of a motion for an inspection of the minutes of testimony before the grand jury.

<p>Wills — execution of —"preponderance of proof — when probate decreed . . ' —• witnesses — evidence; '■. ■</p> <p>Wliere in: a -contested probate proceeding it appears -that the will is-in usual form, signed at the end with the regular attestation clause following, signed by the subscribing witnesses, and the direct testimony of the two subscribing witnesses taken by deposition shows all the facts essential to the valid execution of the will, probate will be decreed although upon cross examination the memory of one witness is not clear as to when the will was signed and the other subscribing witness testifies at one time that it was signed by testator before the witnesses had signed it and at another time after the witnesses signed it.</p>

<p>Lease — covenants — when tenant not liable for cost of structural changes — landlord and tenant — New York Building Code, § 161.</p> <p>A tenant’s covenant to comply with all laws and ordinances of the city of New York and any department thereof clearly implies a different obligation than a covenant to comply therewith at the tenant’s own expense.</p> <p>Where an order of the bureau of - buildings of the city of New York, after reciting that a certain six story warehouse, which had been leased for the purpose of refrigeration and for the selling and dealing in butter, eggs and general merchandise, was not provided with good and sufficient egress in case of fire, as required by chapter 378 of the Laws of 1897, as amended, and section 161 of' the Building Code, directed the owner of the building to forthwith provide certain specified means of egress, the tenant under its covenant to conform to all laws and : ordinances of the ;city and any department, affecting the premises, is not obligated to do more than not to stand in the way of their enforcement,, and the complaint.in an action to recover from the tenant' the reasonable cost of ~ the changes will ' be dismissed. ' • ' '</p> <p>A ..covenant of the -lease that the tenant will not make any alterations in the premises ■without the written consent of the landlord does not make it. liable for compulsory alterations.</p>

<p>Wills —■ life estates — vested remainders — substitutionary legatee.</p> <p>After a gift of the use and income of the' entire estate to one of her - daughters for life, with the right in case of illness to draw upon the principal for support when deemed necessary by the executor, who was given full power to convey real estate, the remainder at the death of the' daughter was devised and bequeathed to the son and another daughter of the testatrix in equal shares. In case the life tenant should survive the remaindermen, his or her portion was given to his or her heirs or in the case of the death of either, leaving no heir, then to theft nearest relative. Both remaindermen survived the testatrix but predeceased the life tenant. Held, that immediately upon the death of the son, his surviving daughter became vested, as substitutionary legatee, with an undivided one-half interest in the estate of the testatrix herein, subject to the interest of the life tenant, now deceased.</p>

<p>Wills — intention of testator — trusts — legacy — when testamentary direction to sell real estate is not an equitable conversion.</p> <p>A testamentary direction to sell the real estate of the testator for a specific purpose is not an equitable conversion for the general purposes of the will.</p> <p>Where by the will of testator, a pensioner of the Civil War, made about a year before his death at the age of sixty years, the entire income and corpus, if necessary, of his estate was to be devoted to the proper support and maintenance of his widow during her lifetime with full power to sell the real estate, and all that remained at her death and after the payment of general legacies was devised and bequeathed to a third person in trust to convert the same into money and keep it invested in lawful interest-bearing securities for the benefit of a nephew of the testator and finally paid to him when he became thirty years of age, and it appears that at the death of the testator his estate consisted of a furnished home worth $1,000 and ten acres of land worth $500, and that the personal estate amounted to $5,432.98, that his widow who survived him eighteen years, though her probability of life was but eight years, occupied the home until her decease and had drawn a widow’s pension, and it further appears that all of the personal property was used for her care and that a short time before her decease, pursuant to an order of the court, the home was mortgaged for $1,000, it cannot be said either from the will alone or in connection with the extrinsic facts and circumstances that the testator intended to make the payment of the general legacies a charge upon his real estate, and the balance remaining in the hands of the administrator with the will annexed must be paid to testator’s nephew or to his judgment creditors.</p>

<p>Transfer tax — when appraisal of estate suspended — wills — trusts — accounting.</p> <p>Where the transfer tax appraiser finds that at the death of decedent, who was sole trustee of the estate of her deceased husband, the value of her estate was $242,758.80, but the schedules and affidavits attached to his report show that of this amount only $21,474.09 belonged to her individually and that the remainder of the property was purchased by her with the trust funds of the estate of her husband, the appraiser is not justified in reporting that real estate purchased with said trust funds belonged to decedent and descended to her heirs at law, because, as matter of law, they or the next of kin of the deceased would hold the property as trustees for those entitled thereto under the will of the deceased husband.</p> <p>The effect of the pendency of an action for an accounting in the estate of decedent’s husband and to impress a trust upon the property purchased by her with the said trust funds is to suspend an appraisal of the value of the interest of her heirs at law or next of kin in her estate until the determination, of said action.</p>

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

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

<p>Costs — who entitled to — appeal—judgments — Municipal Court Code, § 164.</p> <p>A complaint alleged two causes of action and the verdict on one was in favor of defendant and on the other for plaintiff, who obtained a certificate from the trial justice that the substantial cause of action was the same on both issues and judgment was entered for plaintiff in the amount of the verdict in her favor, with costs.' The court on appeal from the judgment and from an order denying defendant’s motion to review said certificate, sustained the verdict and held that the issues upon the two causes of action were not substantially the same, and directed the judgment modified bjr allowing the defendant costs on the verdict in its favor to be offset against the judgment in favor of plaintiff. Upon motion for a reargument, held, that plaintiff was entitled to costs as provided by section 164 of the Municipal Court Code without any offset of costs to the defendant; that the sections of the Code of Civil Procedure which provide for other and different costs are not applicable.</p>

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

<p>Pleading — liberal construction of — motion for judgment on — demurrer— answer—Code Civ. Pro. § 519.</p> <p>Under the rule of liberal construction prescribed by section 519 of the Code of Civil Procedure an amended complaint which pleads that defendant asked plaintiff “to marry him within a reasonable time thereafter and the plaintiff then agreed to marry said defendant within a reasonable time thereafter” alleges mutual promises, and defendant’s motion for judgment on the pleadings, after demurrer to the complaint for insufficiency, will be denied and plaintiff’s cross-motion for like relief will be granted with leave to defendant to withdraw his demurrer and serve an answer.</p>

<p>Application by an administrator for authority to sell certain patent rights belonging to estate of deceased.</p>

<p>Application by a legatee for the construction of a codicil to a will.</p>

<p>Application by a residuary legatee for an order exempting her estate from taxation.</p>

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

<p>Trial — Surrogate’s Court — contested probate—'appeal from order reframing issues does not stay the trial.</p> <p>Where in a contested probate proceeding the issues that the execution of the will was procured by fraud and undue influence have been framed and the cause duly noticed for trial by a jury as demanded, an appeal from an order reframing the issues does not operate to stay the trial.</p>

<p>Lease — covenants — when landlord entitled to recover of tenant for failure to comply with certain requirements of Labor Law — landlord and tenant.</p> <p>Where the tenants of leaseJ premises in the city of New York covenant at their own sole cost and expense to promptly comply with all laws, orders, etc., of any municipal or other lawful authority, appertaining to or affecting the premises, and upon their failure to comply with an order of the fire department of the city requiring the landlord to comply with certain requirements of the Labor Law, and the landlord after being summoned to court for violating the law caused the work to be done in compliance with said order, he is entitled to recover from the tenant the sum actually spent, the same being reasonable in amount.</p>

<p>Action to recover the amount of an award made by . the state industrial commission.</p>

The nature and substance of the cause of action as stated upon the summons is as follows: “Action to recover the value of a fur coat which the defendant, her agent, servant or employee received from the plaintiff on or about the 12th day of December, 1918, and which the defendant, her agent, servant or employee has wholly failed and refused to deliver to the third party or to the plaintiff upon demand, pursuant to its obligations.”

<p>Appeal by the defendants from an order of the City Court of the city of New York, entered in favor of the plaintiff on December 30,1918.</p>

Appeal by defendant from judgment of the City Court of the city of New York, entered on verdict directed for plaintiff, and from order denying motion for new trial.

Appeal by plaintiff from an order of the City Court of the city of New York, setting aside the verdict of a jury in his favor and granting a new trial.

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

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

Appeal by plaintiff front a judgment of the City Court of the city of New York dismissing the complaint upon the merits, after trial by the court without a jury.

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

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

<p>Motion to set aside verdict and for a new trial on the ground of error at the trial.</p>

<p>Judgments — default of answering defendant in appearing at trial — pleading — when motion to set aside granted.</p> <p>Where an answering defendant makes default in appearing at the trial any judgment consistent with the case made by the complaint and embraced within the issues may be taken irrespective of the prayer for relief.</p> <p>Where, however, the complaint in an action brought by a judgment creditor to set aside a chattel mortgage given by a corporation to one of its directors, as in fraud of creditors, and for an accounting of the property or its proceeds, contains no allegation as to the value of the property transferred and lost to plaintiff and no such proof is given upon the trial, a judgment awarding a personal recovery against the defendant ■ director for the amount of plaintiff’s judgment not being within the case made by the complaint is irregular and unauthorized, and a motion to set it aside will be granted unless plaintiff consents that it be modified so as to provide only that the mortgage be declared void and set aside and that defendant account in accordance with the prayer of the complaint. |</p>

<p>Trademarks — exclusive right to use as to certain goods — corporations — when injunction granted.</p> <p>A corporation organized in 1907 and owning the word “ Caravel ” as a trademark, will be granted an injunction to restrain the defendant, a corporation organized in 1918, from dealing in or advertising, under the name “ Caravel Company ” or any similar name, those goods as to which plaintiif has established the exclusive right to use its trademark.</p>

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

<p>Stock Corporation Law, § 17—• construction of, as to protecting the interests of non-consenting minority stockholders — statutes — corporations.</p> <p>• Section 17 of the Stock Corporation Law is a beneficial statute and should be so construed as to protect the interests of non-consenting minority stockholders.</p> <p>A minority stockholder who does not consent to a sale of all the assets of the corporation is, under section 17 of the Stock Corporation Law, entitled after due and proper objection to have the value of his stock appraised and to be paid the value thereof whether his stock is registered in his own name on the corporation’s books or not.</p>

<p>State — motion to dismiss claim against granted —■ not liable for damages for torts — negligence — statutes — master and servant— Military Law, §§ 220-224.</p> <p>The state is not liable in damages for torts committed by its agents or servants unless it has voluntarily assumed such liability.</p> <p>A motion in the Court of Claims to dismiss a claim against the state for the death of a militiaman which is alleged to have been caused by the improper and negligent treatment given him while being vaccinated by a doctor in charge at a state armory, and which is further alleged to have been due to the impurity and dangerous character of the vaccine, should be granted.</p> <p>The state has by statute (Military Law, §§ 220-224) provided another tribunal and method for affording relief to the dependents of soldiers who die while in service either from injuries or from illness.</p>

<p>Depositions — order for physical examination of plaintiff before trial vacated — negligence.</p> <p>. Where an order for the physical examination of the plaintiff before trial in a negligence action provides that “the report of the physician be given to counsel for the defendant ” it will be vacated on plaintiff’s motion.</p> <p>The doctor in such case cannot be required to make any report prior to being called as a witness.</p>

<p>Proceedings by an administrator for the 'discovery of property claimed to be withheld.</p>

Application by executors for an order directing the transfer tax appraiser to omit from consideration and appraisal the remainder interest in a trust fund.

<p>Application for discovery.</p>

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

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

<p>Wills — provisions of — construction of — executors and administrators — accounting — trusts.</p> <p>Where a testatrix directs that twqg-Jifths of the income .from a- certain trust fund be' paid to hereon “ or in case he is dead' at'the time of my death, to his children living at the time of my death until the sums so paid to him and them collectively shall amount to $50,000 ” and in a subsequent clause of her will provides that if her son should survive her but die leaving children who were born during her life time his share of the income should upon his death be paid to such children, and the testatrix’s son survives her but has no- children born in her life time, his right to the two-fifths share of the income becomes absolute and he can bequeath it by will.</p> <p>So where the son died two years after his mother leaving no children born in her life time, and by his will disposed of his interest in her estate, his executor is entitled to receive from the mother’s executor all of the two-fifths of the income from the trust fund accrued since the son’s death and so much of that which had accrued prior to his death as had not been paid to him in his life time.</p>

<p>Surrogates’ Courts — Code Civ. Pro., § 2541, does not apply to uncontested probate proceedings — evidence — wills — infants — when general guardian of a posthumous child is entitled to have decree of probate vacated.</p> <p>Section 2541 of the Code of Civil Procedure requiring a surrogate to make 'his decision in writing relates exclusively to trials and does not apply to uncontested probate proceedings.</p> <p>In New York county the testimony in uncontested probate proceedings may be taken before an assistant to the surrogate.</p> <p>Where the special guardian of an infant does not qualify and is not formally appointed by order until after the taking of the testimony on the uncontested probate of a will the decree admitting the same to probate will be vacated on the petition of the general guardian of the infant even though the special guardian acted in the proceeding when the testimony was taken, such action being unauthorized and the infant not being thereby legally represented on the hearing.</p> <p>The general guardian of a posthumous child born after the probate of her father’s will is entitled to have the decree admitting the same to probate vacated and the proceeding reopened upon proper application.</p>

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

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

<p>Pleading — complaint — demurrer — negotiable instruments — Negotiable Instruments Law, § 160 —■ Code Civ. Pro. § 534.</p> <p>To sustain a demurrer on the ground that the complaint is insufficient in law upon which to predicate á cause of action it must be made to appear that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>Where the complaint -in an action against the maker and indorser of a promissory note is drawn under section 534 of the Code of Civil Procedure but, while setting forth a copy of the note fails to set forth a copy of the indorsement thereon, it is fatally defective as against the indorser.</p> <p>This is so even though by a separate paragraph it is alleged that the defendant indorser indorsed said note for the purpose of lending credit thereon and with the intent of charging himself as first indorser thereon.</p> <p>An allegation that the note was duly presented at maturity but that payment was refused and that the note was thereupon protested, as to all of which defendants had due and timely “ knowledge,” is insufficient as against the indorser as there is no allegation that he had due “ notice ” of dishonor as required by section 160 of the Negotiable Instruments Law.</p> <p>Notice of dishonor is an essential element to hold the indorser of a negotiable instrument as it gives him opportunity to take necessary measures for his own security.</p>

<p>Bonds — by assignee for benefit of creditors — action on a surety bond cannot be maintained by a substituted assignee unless he obtains leave of pourt— pleading — Code Civ. Pro. § 814 — Code Civ. Pro. §' 1888.</p> <p>An action on a surety bond given by an assignee for the benefit of creditors in the usual form and running to the people of the state of Mew York, cannot be maintained by a substituted assignee of the same debtor unless he first obtains leave of court as required by sections 814 and 1888 of the Code of Civil Procedure.</p> <p>Where the complaint in such an action fails to allege that plaintiff has obtained leave to sue, and the answer sets up as an affirmative defense that he has not, defendant’s motion for judgment on the pleadings will be granted with leave to plaintiff to amend.</p>

<p>Verdict — motion for direction of — duty of court to pass upon facts as well as law.</p> <p>Contracts—■ what does not constitute a binding agreement between parties —■ pleading —• lease — Statute of Frauds.</p> <p>Where both sides move for the direction of a verdict at the close of the ease it is the duty of the court to pass upon the facts as well as upon the law.</p> <p>The acceptance of an offer in order to make a valid contract must in every respect meet and correspond with the offer, neither falling within nor going beyond the terms proposed but exactly meeting them at all points.</p> <p>Where an answer proposes to accept an offer under some modification it amounts to a rejection of the offer as made.</p> <p>Where plaintiff wrote a letter to defendant offering to lease to him the fourth floor of a certain building for five, and the ground floor for eight years and eight months at a certain rental, and the next day defendant replied that he would take the premises with the understanding that certain details concerning his use of the garden and improvements would be adjusted and that the “ length of time — ten years * *</p> <p>will be satisfactory ” and thereafter plaintiff submitted a formal written lease which defendant refused to sign, the writings do not constitute a binding agreement between the parties.</p> <p>Defendant’s letter was not an acceptance of plaintiff’s offer because it specified three new conditions, namely, the use of the garden, improvements and a longer term.</p> <p>In order to satisfy the Statute of Frauds in such a ease the written memoranda must state the entire contract with reasonable definiteness and certainty so that the substance thereof will appear from the writings without any resort to paroi evidence.</p> <p>The writings in the case at bar do not show all of the essential terms of the alleged contract.</p>

<p>Exceptions — Code Civ. Pro. § rooo.</p> <p>The only exceptions which can be ordered heard at the Appel.late Division in the first instance (Code Civ. Pro., § 1000) are those of the moving party.</p>

<p>Action against auctioneers for a commission.</p>

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

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

<p>Appeal by defendant from a judgment, of the City Court of the city of New York, entered upon a directed verdict.</p>

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

<p>Action for accounting and construction of will.</p>

<p>Demurrer to complaint.</p>

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

<p>Trusts — to sell real estate and pay proceeds to designated legatees is a valid trust — statutes — executors and administrators — legacy — when there is no suspension of power of alienation — vesting.</p> <p>A trust in executors to sell real estate and pay the proceeds to designated legatees is a valid express trust to sell land under • the statute.</p> <p>Where a testator leaves the residue of his estate after certain devises to his executors in trust to mortgage, sell, invest and manage the same, and from it to pay certain legacies, and directs that the remainder be then turned over to his son Peter or to his issue in the event of his death, there is no unlawful suspension of the power of alienation.</p> <p>The provisions as to the sale of the realty by the executors left them no discretion except as to time and compelled them to distribute the proceeds among the legatees named. Nor did the provisions of the will prevent the legacies from vesting.</p>

<p>Service — non-residents — jurisdiction — marriage ■— when motion to •vacate service by publication granted — Code Civ. Pro. § 438(4).</p> <p>The courts o£ this state cannot by personal service of process outside the state obtain jurisdiction of a non-resident so as to pronounce against her a valid judgment annulling a foreign marriage. In actions to annul a marriage the common law rules as to jurisdiction being dependent upon residence and service of process, obtain.</p> <p>Subdivision 4 of section 438 of the Code of Civil Procedure authorizing an order of publication in an action for the annulment of a marriage, does not extend the scope of the general jurisdictional provisions of the Code relative to such an action.</p> <p>Where in an action against a non-resident to annul a marriage the defendant, appearing specially, moves to vacate an order for the service of the summons by publication and to set aside personal service on her without the state pursuant thereto, and it is shown that the parties were married in the District of Columbia, which was the matrimonial domicile, and that defendant there obtained a separation from plaintiff, the motion will be granted and the service set' aside.</p> <p>After the decree of separation defendant’s domicile did not follow her husband when he removed to New York state.</p>

<p>Money had and received — tenants in common — sales — title — parties — pleading.</p> <p>Where plaintiff, defendant and one A. owned one-half a tract of timber equally as tenants in common, and in plaintiff’s absence and without his knowledge or consent defendant and A. sold the timber and guaranteed the title, and defendant • received plaintiff’s share of the money as well as his own on the understanding with A. that he should hold it as plaintiff’s attorney and not pay it over until plaintiff had repaid A. certain moneys which A. claimed were due him on account of the upkeep of the property, the relation between the parties and A. as to the timber was destroyed upon defendant’s deposit of the moneys in his account and defendant thereupon became liable to plaintiff, after he had ratified the sale, as for moneys had and received.</p> <p>An action for moneys had and received is one at law and plaintiff cannot be compelled to bring A. in as a party defendant. Had defendant desired him to be a party he should have paid plaintiff’s money into court and obtained an order substituting A. in his place as defendant.</p> <p>Although the complaint in such action alleged that defendant sold the timber as plaintiff’s agent and received the money for and on account of plaintiff, but the evidence showed otherwise, still the variance is not such as to require a dismissal where defendant did in fact receive the money and plaintiff became entitled thereto on ratifying the sale.</p>

<p>Habeas corpus proceedings.</p>

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

<p>Action for partition.</p>

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

<p>Summons — service of — amendment of — jurisdiction — county court — judgments.</p> <p>Where a plaintiff in County Court serves a summons requiring the defendant to answer within six days instead of twenty, and takes a judgment by default thereon after fifteen days, the court is without power to remedy the defect bjr amending the summons.</p> <p>So where defendant appears specially and moves to vacate the judgment for want of jurisdiction and plaintiff makes a counter motion for leave to amend the summons, defendant’s motion will be granted and that of plaintiff denied.</p>

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

<p>Legacy — wills — intention of testatrix—evidence — associations — accounting.</p> <p>Where a testatrix leaves a legacy to the “ Old Ladies Home in said New Bedford ” and it appears that there is no institution of that exact title in New Bedford but that there are two similar corporations there, one the “New Bedford'Home for Aged” and the other the “Association for the Relief of Aged Women in New Bedford,” the surrogate in ascertaining which was intended will examine not only the charters of the two institutions but, if they afford no satisfactory basis for a determination, will also consider extrinsic evidence.</p> <p>Where the names and charters of the institutions, furnish no satisfactory grounds for a decision, since both corporations perform services similar to those testatrix evidently had in mind, but one of the institutions submits affidavits showing that it is colloquially known as the .“ Old Ladies ” in New Bed-ford; that testatrix had knowledge of its work through her relatives and that 'she had heard one of them refer to it as the “ Old Ladies,” the executors on their accounting will be directed to pay the legacy to such institution,</p>

Motion by defendant to set aside verdict and for a new trial. There is also before the court a motion made at the close of the plaintiff’s evidence for a dismissal of the complaint, upon which- decision was then reserved.

<p>Trust — when testamentary trustee may sell non-legalised securities without leave of court.</p>

<p>Action to enforce a- lien for a public- improvement.</p>

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