Volume 108 — New York Miscellaneous Reports

Appeax, by the defendant from a judgment of the City Court of the city of New York, for $1,507.79, directed by the court, after a trial before the court and a jury; also from an order denying a motion to set aside the verdict and for a new trial.

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

<p>Contracts — directors of corporation not liable to a stockholder for breaking contract with another corporation — tort.— pleading — when motion for judgment on the pleadings granted.</p> <p>Directors of a corporation are not liable to a stockholder for having caused the corporation to break its contract with another corporation; such an extension of the doctrine of interfering with a contract right would tend to leave directors open to tort claims whenever the corporation had failed to perform a contract.</p> <p>Where the promissee of such a contract could enforce full satisfaction of a judgment obtained in an action against the corporation for a breach of contract, the directors would not be held personally liable and there would be no occasion for introducing a new form of remedy.</p> <p>Complaint considered’ and held not to state a cause of action against either corporation nor against the defendant directors, and a motion on behalf of all defendants for judgment on the pleadings granted, with leave to plaintiff to plead over.</p>

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

Motion by plaintiff and certain defendants to fix and determine the amount of the referee’s fees and commissions in an action in partition of real property.

Action by the plaintiff, the successor in interest of the Atlantic Trust Company, for a judicial settlement of its accounts as trustee of five trusts set up under the will of Sarah Louise Bennet, deceased, and for a construction of that will, with particular reference to subdivisions 4, 5, 6, 7 and 8 of clause 16 thereof.

<p>Ceetiobabi proceeding.</p>

<p>Motion to remove a trustee.</p>

<p>Cross motions for judgment on the pleadings.</p>

<p>Contracts — breach of — when valid contract cannot be rescinded or altered — municipal corporations — injunctions.</p> <p>Where a valid contract is made by a municipal corporation or a board thereof either by way of an ordinance or resolution, it cannot be rescinded or altered without the consent of the other party.</p> <p>Where the damage resulting from a breach of contract cannot be adequately determined or there is a great uncertainty as to its amount a court of equity will restrain the threatened injury. ,</p>

<p>Code Civ. Pro. § 1902 — action for causing death by negligence — when motion for judgment on the pleadings denied—Workmen’s Compensation Law, § 11.</p> <p>Section 1902 of the Code of Civil Procedure is still in force notwithstanding the Workmen’s Compensation Law and is applicable to all cases not included within the scope of said law.</p> <p>The rights enforceable under said section 1902 of the Code of Civil Procedure are curtailed by the Workmen’s Compensation Law, section 11 of which in effect takes out of the operation of said section 1902 the right to enforce liability in certain eases embraced within the terms and conditions of the Compensation Law and engrafts a limitation upon the liability enforceable under said section 1902.</p> <p>If section 11 of the Compensation Law, which provides that liability in death cases shall be exclusive of all other rights and remedies for injuries to employees or for death resulting from such injuries, may be considered as a proviso, the plaintiffs in an action under said section 1902 for damages for causing the death of their intestate by wrongful act while he was engaged in work of a maritime character, upon making out a prima fade case were not bound to negative -section 11 of the Workmen’s Compensation Law, and defendant’s motion for judgment on the pleadings will be denied though its answer contains denials.</p>

<p>Certificate of reasonable doubt—objectionable remarks of district attorney — prejudicial attitude of judge — contempt — criminal la-w — evidence — trial — application granted.</p> <p>The defendant’s counsel in a criminal case are entitled to respectful treatment both from the court and from the district attorney, and their private and personal character or their previous records should not be unfavorably commented upon before the jury.</p> <p>Where counsel for the defense in his conduct of the trial oversteps the bounds of propriety, the remedy lies in the power of the court to punish him for contempt rather than in permitting vituperation and abuse by the district attorney in summing up.</p> <p>The burden of showing that error committed on a criminal trial is not prejudicial to the defendant is upon the prosecution.</p> <p>The weight of authority is in favor of permitting defendant’s counsel in a criminal case to interpose objection to objectionable remarks made by the district attorney.</p> <p>Where a woman on being arraigned for sentence upon her conviction of manslaughter in the first degree, the court upon denying the motion to set aside the verdict as against the evidence and upon other grounds said: “ The only respect in which the verdict is against the evidence is that it should have been murder; of course it probably would have been but for the question of sex,” and on imposing sentence said: “ On the evidence the defendant is guilty of murder,” an application for a certificate of reasonable doubt as to whether the judgment of conviction should stand will be granted upon the ground that the defendant was not accorded a fair trial.</p>

<p>Actios" to recover 'possession of Glen Island, in Lake George.</p>

<p>Habeas coepus proceedings.</p>

<p>Application for the appointment of a guardian of the person of John Mancini, an infant, under the age of fourteen years.</p>

<p>Proceedings upon the judicial settlement of the accounts of temporary administrators and of executors.</p>

<p>Wills — construction of — intention of testator — legacies — life estates.</p> <p>A will giving the executors a discretionary power of sale provided that if the proceeds of a sale of the residuary estate, in which testator’s wife was given a life estate, were insufficient to pay in full certain legacies, which were less in amount than the personal estate, they should be paid pro rata, but should there be more moneys on hand, then such excess and such other moneys as may have reverted back to the estate by reason of the death of any of the legatees dying without issue, should “ after all the other legacies herein provided have been paid in full” be divided equally among certain persons. Held, that the real estate was not charged with the payment of the legacies, but that it was testator’s intention that they should be paid from the primary personal estate so far as it might go, and to create a life estate for his wife in the balance of the estate, and upon her death to pay the specified legatees the specified amounts.</p>

<p>Discovery proceeding brought by an administrator to discover certain property.</p>

<p>Decedents’ estates — disputed claim for services — when recovery may he had on quantum meruit — evidence — contracts — wills.</p> <p>Where upon the hearing of a disputed claim against a decedent’s estate, for services rendered, the alleged express oral promise of the decedent to provide for the payment of the claim by his will, is not established by such proof as would entitle claimant to recover, she is entitled to recover on a quantum meruit, there being no denial of the rendition of the services.</p>

<p>Action for the purpose of obtaining the instruction of the court as to the disposition of certain insurance moneys.</p>

<p>Foreclosure — mortgages — extension agreement — pleading — trial — burden of proof — when motion to dismiss complaint denied.</p> <p>The time of payment of a mortgage was extended prior to a conveyance of the mortgaged premises and an action of foreclosure discontinued pursuant to a further extension agreement entered into between the mortgagee and the mortgagor’s grantee in and by which agreement the said grantee agreed to pay the mortgage with interest. In an action of foreclosure brought thereafter only the mortgagor served an answer which denied the allegation of the complaint as to the last extension agreement and the amount due, and as an affirmative defense alleged his conveyance of the mortgaged premises, and that the last extension agreement was made without his consent and that his liability under the mortgage was thereby terminated. Upon the trial plaintiff offered in evidence the bond and mortgage in suit and the various extension agreements but offered no evidence as to whether the mortgagor consented to the last extension agreement, or of any subsequent diminution in the value of the property, and whether the mortgagor had conveyed the property subject to the mortgage or his grantee had assumed payment thereof did not appear. Upon denying a motion to dismiss the complaint, held, that it was no part of plaintiff’s ease to allege and prove that the mortgagor consented to the last extension agreement; that having made proof of the mortgage, the burden was then upon the mortgagor to establish his affirmative defense and, having failed so to do, plaintiff was entitled to the usual judgment of foreclosure and sale including an adjudication as to the payment of any deficiency.</p>

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

<p>Pleading — allegations contained in complaint — answer — reply — banks — Statute of Limitations — motion to overrule demurrer denied.</p> <p>A resident of the city of New York died in 1822 and his executor, without ever having filed an inventory or accounting, died in 1852 leaving among the unadministered assets of the estate sixty-seven shares of the capital stock of a certain bank evidenced by a certificate issued in 1823, in the name of the deceased executor. Neither the estate of said deceased executor nor that of his testator was ever fully administered. On January 1, 1855, when the charter of said bank expired by limitation, another duly incorporated state bank acquired the business and property of the defunct bank, whose stockholders, under the plan of acquisition, became entitled to certain shares of the stock of the new bank in place of their stock in the defunct bank. Under a plan for the conversion of the new state bank into a national bank its stockholders became entitled to certain shares of the stock of said national bank. A complaint against the national bank set forth the facts, pleaded that no stock of any of said banks was ever issued to the estate of the testator, who died in 1822, on account of said sixty-seven shares although a demand therefor was made by plaintiff as administrator with the will annexed. The prayer for relief was that defendant be required to transfer on its books the said sixty-seven shares of stock and to issue therefor a certificate for such number of shares of its stock as were truly represented by said certificate for sixty-seven shares in the defunct bank, and also for an accounting for all dividends accrued and unpaid from a certain date in 1823. The amended answer pleaded inter alia the six, ten and twenty year statutes of limitations as defenses and the amended reply alleged as avoidances that the interest of the estate of the deceased testator in the defunct bank by the terms of the agreements of acquisition and consolidation were received by the new state bank and through the other predecessors of defendant, by defendant in the capacity of an agent or fiduciary, but the terms of the various agreements were not set forth. Held, that .the allegations of the reply were mere conclusions of law, not admitted by the demurrer, and a motion to overrule the same will be denied.</p>

<p>Pleading — in action to recover for personal injuries — negligence — answer — reply — Workmen’s Compensation Law, § 51 — Code Civ. Pro. § 538.</p> <p>In an employee’s common-law action to recover for personal injuries, the answer denied the allegations of defendant’s negligence, and for a further and separate defense pleaded, in bar of a recovery, that prior to the accident the defendant had fully complied with the Workmen’s Compensation Law by securing compensation to employees and their dependents and in conformity to said statute had theretofore maintained and posted printed notices regarding such compensation. The plaintiff, in the same paragraph of his reply which denied the allegation of the answer as to maintaining and posting said notices, denied having any knowledge or information sufficient to form a belief as to defendant conforming to the requirements of the statute but pleaded that said allegation was immaterial, incompetent and irrelevant to plaintiff’s cause of action. Held, that the reply put in issue the maintenance and posting of notices regarding compensation in conformity with section 51 of the Workmen’s Compensation Law.</p> <p>Even if the allegation of the answer as to compliance with the provisions of the Workmen’s Compensation Law had been met only with a denial in the reply of knowledge or information respecting the same, and assuming that all the facts relating to such alleged compliance are matters of public record, the proper method of testing the alleged defect was by a motion under section 538 of the Code of Civil Procedure to strike out the reply, not by a motion for judgment on the pleadings under section 547 of the Code of Civil Procedure.</p> <p>The facts pleaded in the complaint considered, and held not to bring the case within the Workmen’s Compensation Law as it was in force at the time when the accident happened, and that plaintiff was not barred from maintaining the present action.</p>

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

<p>Motion to strike out irrelevant matter in defense.</p>

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

<p>Lease — covenants — landlord and tenant — merger.</p> <p>Injunctions — pendente lite — when motion for denied.</p> <p>Defendant is the owner of several properties one of which is an uncovered yard, enclosed by a brick wall," having exits on two streets and protected by sliding doors entirely enclosing the openings. There was also on the plot, a platform scale for weighing trucks, the beam of which was in a one-story brick building formerly used by defendant as an office, and situated on one of the said streets. The brick building has three large windows, three smaller windows, which admit light into water closets, and one door opening upon the brick enclosed space. A lease of all the properties to plaintiff contained a covenant that defendant would not use or permit to be used “ any part of the demised premises for any business or purpose other than the storage and sale of non-combustible chemicals, or any other merchandise or articles not more hazardous or injurious to the building, or * * * obstruct the lights or skylights thereof, injure or disfigure the said building in any way, or make any alterations therein, or allow the same to be done, without first obtaining the written consent of the landlord.” A lease from plaintiff to defendant of the uncovered yard restricted the premises demised “ for storing of trucks and any other purpose to which the landlord may agree,” and omitted the restrictive covenant contained in the defendant’s lease to plaintiff; otherwise the two leases contain identical clauses, particularly the term of each lease being coterminous. Held, that there was no intention to prevent a merger of the lesser estate .granted to defendant, in its larger title of fee simple absolute.</p> <p>An injunction pendente lite restraining defendant from continuing to construct a roof over the premises leased to it by plaintiff and from constructing a brick wall parallel to and about six inches from the side wall of the office building, denied on the ground that defendant’s acceptance of the lease from plaintiff merged all that it contained thereby in the fee, and that there was no violation of any of plaintiff’s rights.</p>

<p>Depositions — when motion to vacate order for examination before trial granted — criminal law.</p> <p>Where in an action for damages for the conversion of certain shares of stock it appears that one of the defendants had previously been sentenced upon his conviction of the larceny of said stock, and the only special circumstances which render his examination before trial necessary are those relating to his release on parole, a motion to vacate an order for such examination will be granted, where it appears that his deposition is sought to be taken for use upon the separate trial of the issues raised by the answer of other defendants.</p>

<p>Action for an injunction. Motion to overrule demurrer and for judgment on the pleadings.</p>

<p>Taxpayers’ action — city of New York — lease.</p> <p>The city of New York may lawfully lease the Arsenal building in Central Park for purposes of a museum.</p>

<p>Mandamus — when application for, denied — garage—building zone resolution as amended in June, 1919, § 20.</p> <p>Under section 20 of the building zone resolution as amended in June, 1919, in no case, no matter how the measurement may be made, may a garage be lawfully erected or extended for use for more than five cars, within a distance of two hundred feet of a hospital.</p> <p>Where though a permit for the erection of such a garage within the statutory distance has been issued by the superintendent of buildings under said section of the building zone resolution, an application for a mandamus directing him to revoke the permit will be denied in advance, of a review of the action of the superintendent by the board of appeals.</p>

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

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

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

<p>Action for an injunction. Motion for a preliminary injunction.</p>

<p>Wills — construction of — when whole will declared invalid — suspension of power of alienation.</p> <p>Where it appears that testator, who died about a year after making his will, was fond of his two infant children by his second wife and meant them to have a substantial portion of his estate, and in an action for the construction of his will,- the provision he sought to make for them is held to be invalid because suspending the power of alienation, the will as a whole must be declared invalid, as to permit the balance of the will to stand would entirely deprive said children o£ their inheritance and would he unjust and contrary to the wishes of testator.</p>

<p>Action in partition.</p>

<p>Decedents’ estates — heirs at law of an adopted child — Decedent Estate Law, § 88¡— Domestic Relations Law, § 114.</p> <p>Decedent had been legally adopted by the sister of his mother, both of whom he survived; he died intestate the owner of real estate which came to him by descent from his father. The intestate left him surviving no descendants, brother or sister or descendants of them. The plaintiffs are his cousins, being children of the sister of his father. The defendants are his uncles, being brothers of his deceased mother and his deceased foster-mother. Meld, that section 88 of the Decedent Estate Law does not apply, as section 114 of the Domestic Relations Law provides that the right of inheritance extends to the adopted person’s heirs and next of kin, and defines such heirs and next of kin to be the same as if he were the legitimate child of his foster parent, and that the heirs of the intestate by virtue of this statute are the same as they would be if he was the real son of his foster-mother and these persons are the uncles on the mother’s side.</p>

<p>Separation — when action for, may be brought by husband — divorce.</p> <p>A husband may bring an action for a separation on the ground of defendant’s cruel and inhuman treatment.</p>

<p>Action in partition.</p>

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

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

<p>Injunctions — when motion to set aside, pendente lite, denied — municipal corporations — taxpayer’s action—General Municipal Law, § 51 — Code Civ. Pro. § 1925.</p> <p>Where the city of Oswego, in exchange for its right to use one-half of the waters impounded by the barge canal dam No. 6, etc., agrees with and is about to execute and intends to deliver to the state of New York certain releases which will, in effect, relieve the state from any liability to the city because of any and all claims growing out of the taking or occupation heretofore of lands belonging to the city or its predecessors in title for temporary or permanent canal uses or purposes, etc., and a taxpayer’s action is brought under section 51 of the General Municipal Law and section 1925 of the.Code of Civil Procedure to restrain the city from carrying out such compromised settlement of its said claims, which arose out of the construction of the improved Oswego canal, on the ground that so to do would be illegal and result in a waste of public funds and in the city parting irrevocably with valuable claims against the state for substantially no consideration, and it appears that the basis of the action rests not on a claim of any personal corrupt motives of any of the city officials, but upon the ground that the proposed action is so unwise as to amount to an abuse of discretion and fraught with such possibilities of injuries to the city as to amount to bad faith and fraud, a motion to continue an injunction pendente lite will be granted and a motion to set the same aside will be denied.</p>

<p>Marriage — when legal and binding — fraud — evidence — husband and wife.</p> <p>About a month after his ceremonial marriage in 1848 at Lyons, N. Y., to a girl not quite fourteen and one-half years of age, who had theretofore resided with her parents in the state of New York, the husband left her and went to California and she returned to her parents who cared for her until she became of age. On the return of her husband from California, after a short stay, he wrote asldng her to return and live with him, but her father refused to permit her so to do. In reply to a letter to the postmaster at Lyons, N. Y., concerning her husband’s whereabouts she received a letter stating that he was dead. Seventeen years after her husband left her she went to the city of New York and was thereafter known only by her maiden name. While in the city of New York she married a widower who had two infant children by his first wife, and the second wife bore him two children and they all lived together as a happy family until her stepchildren became of age and until the death of her husband in 1886, by the terms of whose will she was given one-half of his entire estate and was one of the executors, the remaining half being given to his children in equal shares. One of the children of the second marriage died in infancy and the other, though he survived his father, died unmarried leaving no issue, and his estate, largely derived from his father, by his will passed to his mother, who died in 1917. In an action by her stepchildren, who had never heard of her former marriage until after her death, to recover from her estate the moneys and property which came to her from' their father, both by gift in his lifetime and by his will, and through her deceased son, which action was brought upon the theory that decedent’s marriage with the father of plaintiffs was illegal and void, held, upon consideration of the evidence, that said marriage was legal and binding; that no fraud, deceit or concealment by the wife of her former marriage had been shown.</p> <p>Conceding that actual and intentional deception was practiced by the second wife for the purpose of obtaining the marriage with the plaintiffs’ father and continuing its benefits, it would not have been annulled therefor at his instance had he known of it.</p> <p>Certain presumptions in favor of the second marriage, which plaintiffs were bound to rebut as part of their affirmative ease, pointed out and held not to have been rebutted by the testimony.</p>

<p>Schools — compulsory education of children — statutes — evidence — criminal law — Education Law, § 624.</p> <p>The only defense to a prosecution under section 624 of the Education Law relating to compulsory education of children between the ages of eight and sixteen years, is that they are not in proper physical and mental condition to attend school.</p> <p>Where the father of children aged twelve, eleven, ten and seven years respectively, residing three and one-half miles from the schoolhouse by one road and a little less than two miles by a shorter but muddy road, which has water standing on it in places during rainy weather, fails in his duty to cause his children to attend school, and it appears that two of the children were physically and mentally able to attend school, it is no defense to a prosecution of the father for a violation of section 624 of the Education Law that the distance from his home to the schoolhouse is so great and the roads a part of the time are so bad that it would be unreasonable to require him to send the children to school.</p> <p>Such excuses should have been presented by proper petition to the state department of education or by an appeal from the decision of the school district in February, 1919, discontinuing the transportation of children.</p> <p>That one child was under school age and another had a crippled leg did not relieve the defendant from the charge of violating the statute with respect to the children who were of school age and with reference to whom no physical or mental defect was shown.</p>

<p>Conversion—.when collector of school district liable for .— actions — bonds — Education Law, § 252.</p> <p>Where one duly appointed school district tax collector fails to qualify by giving the bond required by section 252 of the Education Law he has no authority to collect a tax and is therefore liable in conversion for seizing and selling certain personal property of one who refuses to pay his school tax.</p> <p>The fact that the owner, afte^ the sale of said property under the tax warrant pursuant to notice duly posted, delivered some of the property to the purchaser did not preclude him from maintaining the action.</p>

<p>Motion to reconsider the dismissal of complaint.</p>

<p>Husband and wife — when action to set aside separation agreement may he maintained.</p> <p>Where the weekly allowance provided for a wife and her two children by a separation agreement entered into after she had commenced an action for separation, for just cause, is disproportionate to the husband’s means and income and it is impossible for the wife and her children to live on said allowance on the scale on which the family had lived before the separation, she may maintain an action to set aside the agreement on the ground that it was improvidently made and she need not offer to return any money received thereunder.</p>

<p>Verdict — when excessive, may be reduced — negligence.</p> <p>An eminent clergyman in the night time slipped and fell into an open space on defendant’s unlighted and unguarded elevated railroad stairs leading to one of its stations where one of the steps was out. Notwithstanding that his right wrist and hip bone were badly fractured, he is able to follow his vocation and to write without substantial physical restriction, but a limp due to shortening of the leg and the lack of grasp and impairment of motion in his right hand and wrist are permanent. Held, that the court being satisfied that a verdict of $48,000 was unduly enlarged by the jury’s belief that defendant was guilty of gross negligence, it was its duty to reduce the verdict to $30,000 upon plaintiff filing the usual stipulation.</p>

<p>Covenants — sale of real estate — garage i— deeds — actions.</p> <p>A garage is not a “ stable,” neither is it a dangerous, noxious, unwholesome or offensive establishment, trade, calling or business offensive to the neighborhood within the meaning of a restrictive covenant which provides that there shall not be erected or carried on or upon the premises any “ omnibus, livery or cow stable * * * or other dangerous, noxious,</p> <p>unwholesome or offensive establishment, trade, calling or business whatsoever offensive to the neighborhood.” It is inconceivable that when said covenant was made in 1850 and repeated in subsequent deeds in 1852 and 1853 and referred to in deeds down to 1896, the parties interested had in contemplation a garage.</p> <p>Where in a contract of sale of real estate reference is made to restrictive covenants which the intending vendor practically warrants do not prevent the maintenance of a garage on the premises the intending vendee, who concedes that the erection of a garage may be lawfully permitted, may not maintain an action to recover money paid under the contract on the ground of covenant broken by the erection and maintenance of a garage upon the premises.</p>

<p>Motion for judgment on demurrer to complaint.</p> <p>Valentine O’Neill left the city of Rochester about the year 1883. His brother, William O’Neill, died January 14,1893, leaving a will which was admitted to probate January 7, 1895, by the terms of which he bequeathed to his brother Valentine the sum of $10,000. The estate was settled by the executor and a decree of judicial settlement was entered under which the $10,000 was deposited in the Monroe county treasury to the credit of Valentine. Frederick O’Neill, another brother of Valentine, supposing that the latter was dead procured letters of administration upon his estate January 29, 1897, and thereafter the estate of Valentine was judicially settled and a decree made directing the treasurer of Monroe county to pay the sum of $10,000 with accumulations less legal fees to the brother Frederick. Thereafter and on October 18, 1902, Frederick died leaving a last will and testament in which he bequeathed to his brother Valentine the sum of $10,000 to be paid to him in case he survived him and personally presented himself and made .claim to the money. The will was admitted to probate and the estate was settled January 29, 1904. Later on and on January 15, 1906, the decree was opened and a further decree was made settling the estate of Frederick and decreeing that his estate including the sum of $10,000 should be turned over to his wife, Kate M. O’Neill. Valentine reappeared in the city of Rochester December 4, 1913, and made a claim to the money which had been bequeathed to him by his brothers and on December 10, 1913, a contract was made with Kate, individually and as executrix of her husband, Frederick, whereby he was to receive $2,000 in cash and certain semiannual payments of which at the time of the commencement of this action there were two installments of $500 each remaining unpaid. The action is brought to recover on this contract and is opposed on the ground that there was no consideration for it.</p>

<p>Contracts — secret agreements between husband and wife — fraudulent conveyances — evidence — bankruptcy.</p> <p>Secret agreements between husband and wife under which it is claimed that he carried on the business of erecting and selling houses for her while at the same time he conducted a like business for himself, will be viewed with suspicion and any transfers of real property to her will be set aside at the instance of creditors where it appears that she had not sufficient funds with which to begin such a business, that written evidence of the agreement and the transaction has been destroyed, that their moneys have been commingled and other facts appear showing an intent to conceal the assets of the husband and to defraud his creditors.</p>

<p>Action to have a deed declared a mortgage and for an accounting.</p>

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

<p>Damages — measure of — fraudulent conveyances — contracts.</p> <p>Where the owner of a lot agrees to make certain advances for its purchase and the erection of a building thereon and to convey the premises subject to a mortgage for such advances but fraudulently refuses to carry out the agreement after the building has been completed and conveys the property to another, the measure of damages is the difference at the time the property was to have been conveyed between its market value with the building and the cost of the property.</p>

<p>Motion to set aside a garnishee execution.</p>

<p>Fraud — deposits in name of wife — banks — liens — husband and wife — executors and administrators — P^rs. Prop. Law, § 19.</p> <p>Under section 19 of the Personal Property Law an administrator may bring an action to set aside as in fraud of the rights of creditors of his intestate deposits made by said intestate in banks in the name of his wife.</p> <p>Where in such an action the wife claims to have made loans to her husband in connection with his business of discounting notes, which loans it is claimed were repaid by small deposits which he made in her name daily in one or more of a number of banks, but it appears that while said deposits were being made the husband, who died insolvent, was in debt, and other facts appear showing an intent on the part of both husband and wife to defraud his creditors, the plaintiff is entitled to judgment.</p> <p>A bank has a lien upon deposits to the extent of all its matured claims against the depositor and may offset such debt against such deposits.</p>

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

<p>Action for cutting, etc., trees and damages therefor.</p>

<p>Action by a real estate broker for commissions.</p>

<p>Condemnation proceedings — street opening assessments—time for valuation of property benefited — when motion to confirm report of commissioner of assessments denied i— evidence.</p> <p>The value of property assessed for benefits in a proceeding to open and extend a street must be of the date of the report of the commissioner of assessments.</p> <p>Where there is no satisfactory evidence of the value of the property after the improvement was completed a motion to confirm the report of the commissioner of assessments based in part thereon will be denied and the matter referred to a new commissioner.</p>

<p>Libel — what not libelous per se.</p> <p>Newspaper articles making specific or general accusations against a public officer, based solely upon official acts which he may lawfully do, are not libelous per se.</p>

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

<p>Application for an order to interplead alien property custodian as defendant.</p>

<p>Judicial sales — partition — title — restrictive covenants i— terms of sale — zone regulations — encroachments — when purchaser at a judicial sale will not he relieved.</p> <p>Where an order appointing a guardian ad litem for an infant defendant in an action for partition fails to provide for the filing of a bond the irregularity may be rectified by an order nunc pro tunc obtained after the sale upon proper notice.</p> <p>While the purchaser at a judicial sale is entitled to a good and marketable title free from all reasonable doubt, he is not entitled to be relieved from his bid merely because of immaterial defects or slight burdens, unless they are shown to appreciably affect the property, and though existing restrictive covenants against certain business uses were not excepted in the terms of sale the purchaser will not be relieved.</p> <p>The same rule applies to zone regulations restricting the property for residential uses, the existence of which was known by the purchaser’s attorney who bid in the property for him, and the purchaser may not be heard to complain that said regulations were not mentioned in the terms of sale.</p> <p>Whether encroachments are sufficient basis for relieving a purchaser at a judicial sale depends upon the facts of each particular case, and if they do not affect the value, they may be disregarded.</p>

<p>Foreclosure — mortgages — forged assignment — payments — lis pendens — equitable estoppel.</p> <p>About a year after an assignment of a bond and mortgage held by plaintiff had been recorded, she discovered that the assignment had been forged by the attorney who then represented her, but she did not notify the owner of the property or the assignee under the forged assignment or any one else having an interest in the property. In an action brought eleven years later to foreclose the mortgage, it appeared that the owner of the property, without knowledge of the forgery, had paid the mortgage to the assignee under the forged assignment and that it had been satisfied of record. Held, that plaintiff was entitled to enforce the mortgage only to the extent of payments made thereon before her knowledge of the forgery.</p> <p>Though plaintiff upon discovery of the forgery was .under no obligation to take some legal action and file a Ms pendens so that a purchaser would be advised of the situation, it was her duty to have advised the owner of the property of the forgery, and not having done so, plaintiff was equitably estopped from asserting any claim for the balance of the mortgage which was past due before the forgery was executed.</p>

<p>Summary proceedings by landlord to obtain possession of premises for non-payment of rent. Taxation of costs.</p>

<p>Action to recover damages for negligence.</p>

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

<p>Contracts — employment — negative covenants — injunctions — when plaintiff entitled to judgment.</p> <p>Defendant, upon entering plaintiff’s employ as a salesman for a period of time to be agreed upon, was given full access to the business, taught its details and methods and generally received careful and prolonged instruction, particularly in the branch of the sale of wrapping paper. The contract of employment provided that defendant should not at any time re- . ferred to in the agreement or at any future time disclose any pf the processes used by plaintiff ip. the manufacture of any articles manufactured or sold by it, no matter from whom or in what manner such information might have been acquired, After a service of about two years and four months the defendant resigned his position and immediately entered thg employ of one of plaintiff’s competitors in trade and disclosed to it certain matters connected with plaintiff’s business generally unknown to the trade and which, in the business of a competitor, could be used to plaintiff’s great damage and loss. Held, that in an action for a permanent injunction to enforce the negative covenant of the contract, plaintiff was entitled to judgment.</p>

<p>Motion to adjudge defendant in contempt.</p>

<p>Default — when motion to open, denied — Code Civ. Pro. § 724.</p> <p>Unless a meritorious case is shown, plaintiff’s motion to open her default will be denied even though she establishes the reasonable excuse for failure to appear when her ease was reached for trial in regular order, as required by section 724 of the Code of Civil Procedure.</p>

<p>Decedents’ estates — when residuary estate vests in legatee.</p> <p>Negotiable instruments — bills of exchange — assignment — evidence i—executors and administrators.</p> <p>Not until the payment of debts and other legacies and charges does any part of the residuary estate vest in the residuary legatee.</p> <p>On the trial of an action on a bill of exchange drawn on defendant, directing him to pay to M. a certain sum, there was proof of the drawing and acceptance of the bill as alleged but not of the assignment of the bill by M. to plaintiff as was also alleged in the complaint. The evidence in that regard tended to show that M. at his death was the owner of the bill; that by his will he gave his residuary estate to his wife, who was also named as executrix. There was no evidence of the value of M.’s estate or of the amount of his debts, nor was there any evidence that the debts and specific legacies had been paid or that the executrix had done anything touching the administration of the estate. Held, that she was not the owner of the bill at the time of its alleged assignment to plaintiff and could only dispose of it in her capacity as executrix.</p> <p>A judgment entered on a directed verdict in favor of plaintiff reversed on the ground that the bill of exchange at the time of its alleged assignment to plaintiff constituted a part of the estate held by said executrix to be administered in accordance with the terms of the will.</p>

<p>Application under section 2615 of the Code of Civil Procedure for the construction of a will.</p>

<p>Application by beneficiaries under a will to vacate an order fixing the transfer tax.</p>

<p>Motion for the confirmation of report of the commissioners of estimate.</p>

<p>Incompetent persons — when motion to discharge committee of person and property granted.</p> <p>Where two years after petitioner had been duly committed to an asyslum for the insane in this state, and as a result of a proceeding instituted by two of his brothers a committee of his person and property was appointed, and it appears that for upwards of seventeen years since he was judicially declared competent in a sister state to which he had gone after his escape from the asylum he had lived a sane and well-ordered life in the enjoyment of social, religious and public esteem and honor outside of the state of New York, a motion to discharge the committee of his person and property will be granted.</p>

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

<p>Separation — action for — motions and orders >— when motion for alimony and counsel fee denied.</p> <p>Where the defendant in an action for a separation earns $100 a month and it appears that plaintiff has nearly $1,400 in one bank and that about two weeks before the order to show cause on her application for alimony and counsel fee was signed, she withdrew nearly $450 from another bank, the motion will be denied but with leave to renew on a proper showing that she is destitute of means to carry on the suit and support herself during its pendency.</p>

<p>Election Law — jurisdiction of board of elections — statutes — primary elections.</p> <p>On July 28,1919, the chairman of the Democratic county committee of Richmond county filed with the board of elections of the city of New York a statement showing the number of eommitteemen to be elected at the primary in each district. On August 5, 1919, petitions were filed on behalf of those chosen by the organization of the party for these places, and on the same day a written objection to the statement was filed with said board, upon the ground that it did not specify the correct number of members to be voted for as required by section 37 of the Election Law. Two days thereafter another objection in writing was filed with the board, based on similar grounds. Upon the same day that notice of said objections was duly given a hearing was had thereon before the board at which both sides were given full opportunity to state their respective contention. Held, that a resolution or order: “That the portion of the Primary Call filed by the Chairman of the Democratic Committee of Richmond County that specifies the number of members of the County Committee to be voted for at the Primary Election is defective and not in accordance with the requirements of the Election Law, and that the names of the persons that may be thereby designated for members of the County Committee of the Democratic Party in Richmond County are not entitled to be placed upon the ballot,” was within the jurisdiction of the board of elections, and that having acted within its statutory powers a motion to declare said resolution null and void and of no effect will be denied.</p>

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

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

<p>Application for an order invalidating and declaring null and void a designating petition.</p>

<p>Application by petitioner to have designating petitions declared invalid.</p>

<p>Executions — body — when motion to vacate denied — bankruptcy — judgment — waiver.</p> <p>Where after the denial of a motion to vacate a body execution issued upon a judgment in a tort action, defendant became a voluntary bankrupt, the plaintiff, by voting for trustee upon her claim arising out of the judgment, waives no right to issue a body execution thereon whether the defendant has been granted or refused his discharge in" bankruptcy, and a motion to vacate the execution will be denied.</p>

<p>Insurance (fire) — action to recover upon policies of — pleading — trial — evidence — concurrent insurance — waiver — estoppel.</p> <p>In three separate actions to recover upon policies of fire insurance permitting concurrent insurance, the answer of the several defendant companies, after certain formal admissions and denials, pleaded forfeiture of the policies in suit because of unauthorized concurrent insurance and the employment of mechanics in altering or repairing the insured building for more than fifteen days without the consent of the defendants. No motion to require a reply to such defenses was made and the sufficiency of the complaint was raised for the first time upon defendant’s brief months after the trial. Held, that the, specific defenses were not conditions precedent necessary to be alleged in the complaint but simply new matter constituting a defense and might be met upon the pleadings as they are.</p> <p>An objection to certain testimony received, as “not within the pleadings,” mingled with others, did not serve fairly to call the attention of either the counsel or court to the objection of the insufficiency of the complaint; had it been precisely stated on the trial or presented on motion for a non-suit or by a motion to dismiss the complaint at the close of the case, the court’s power to amend could have been appealed to or in some other manner plaintiffs interest could have been protected, but as at this time, in order to meet the objection, the trial would need to be reopened, the objection will be overruled as coming too late.</p> <p>Upon review of the case, certain testimony as to conversations between plaintiff’s manager and the insurance agent of defendants, prior to and leading to the issuance of the policies, received in one of the actions against the defendant held competent in each case, and a ruling excluding like testimony in the other actions reversed and the evidence received against all the defendants with an exception to each and the record amended accordingly.'</p> <p>The knowledge of defendants’ agent of other insurance on the building in force at the time the policies in suit were issued, whether he communicated it to them or not or even misinformed them as to it, was the knowledge of the defendant companies; they are bound thereby and are presumed to have issued the policies in controversy with that knowledge in mind and as valid subsisting obligations additional to those outstanding to plaintiff issued by another insurance company.</p> <p>Each of the policies, all of which were issued through the same agent as part of a single transaction, provided that it should be void if the insured then had or should thereafter procure any other insurance whether valid or not on property covered in whole or in part by the policy. Held, that a rider attached to and forming a part of each policy waiving in whole or in part said provision must be deemed to authorize unlimited concurrent insurance and that the policy in the first action had not been forfeited by the later contracts of insurance.</p> <p>Where the later policies, though valid in their inception, were subject to the condition that no concurrent insurance should be placed except as expressly permitted, a condition defendants’ agent could not waive, the obtaining of other insurance exceeding the restricted permit in violation of the terms of the policies worked their forfeiture and no recovery could be had thereon unless the insurer had by some act waived the forfeiture or estopped itself from asserting it to its advantage.</p> <p>The fact that defendants’ agent was tpld by plaintiff in the negotiation for the insurance that it intended to take out further insurance and was instructed to write all policies so that other concurrent insurance would be permitted did not constitute a waiver nor estop defendants from insisting upon the enforcement of the policies according to their terms.</p> <p>Each of the policies in the second and third actions provided that the insurer should not be held to have “waived any condition of this policy or any forfeiture thereof by any requirement, act or proceeding on its part relating to the appraisal or to any examination herein provided for.” Held, that neither by the examination of plaintiff’s president nor by retention of the proofs of loss prepared and served by plaintiff of its own volition were the defendants estopped from claiming the benefit of the forfeiture, as the plaintiff’s rights were gone before the proofs of loss had been served.</p> <p>Where each of the policies in suit provided that it should be void “ if mechanics be employed in building, altering or repairing within the described premises for more than fifteen days at one time,” and it appears that in addition to some repairs to the insured buildings an entirely new and separate structure, not forbidden by the policies, was erected and only by inference could it be determined that work upon the insured buildings proceeded for more than fifteen days at any one time, the proof was insufficient to show that said condition of the policy had been violated.</p> <p>Judgment directed for plaintiff in the first action and for the defendants in each of the other actions.</p>

<p>Demurrer to counterclaim and partial defenses set up in defendant’s answer.</p>

<p>Liquor Tax Law, § 33 — evidence >— trial — dismissal of complaint.</p> <p>The complainant in a proceeding taken under section 33 of the Liquor Tax Law to declare a forfeiture of liquor seized, in order to succeed, must prove that liquor was “ kept, stored or deposited for the purpose of unlawful sale or distribution within this state.”</p> <p>Where the proof only shows that the lager beer seized was found at defendant’s residence, he is entitled to judgment dismissing the complaint and for the return of the beer to the place from which it was taken.</p>

<p>Action to foreclose a mechanic’s lien.</p>

<p>Application for instructions by executors in an accounting proceeding.</p>

<p>Motion by an administrator for a discovery of certain personal property.</p>

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

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

<p>Transfer tax—charitable institutions—wills—trusts—residuary estates — bequests — Tax Law, §§ 221, 222, 230.</p> <p>Testator directed that the income of one-half of Ms residuary estate should be paid to Ms wife for life and at her death to various named beneficiaries during the life of a certain grandnephew. Upon the death of the wife and the grandnephew the trust estate created by the residuary clause was to cease and determine and, upon the happening of those events, testator directed that the one-half of the residue from which said income was derived should be given to seventeen charitable institutions, which under section 221 of the Tax Law were exempt from the payment of a transfer tax, The will further provided that in ease of the dissolution of any of said charitable institutions prior to the time the bequest to them became effective or in ease at the time the bequest should become effective, any of such institutions would be legally incompetent to take, then the amount of any such bequest should be distributed among the other societies, hospitals and institutions thereinbefore mentioned, pro rata, in proportion to their respective bequests. Reid, that the possibility that all of the seventeen charitable corporations would be unable to take “ at the time the bequest should become effective ” was too remote to be considered present “ contingencies or conditions ” under section 230 of the Tax Law whereby said bequests might be defeated.</p> <p>The amount of the possible tax upon the value of the remainder interests passing to the seventeen separate charitable institutions having been ascertained, it can “ accrue and become due and payable (only) when the persons beneficially entitled thereto shall come into actual possession or enjoyment thereof ” as declared by section 222 of the Tax Law.</p>

<p>Action by insurance company to recover a certain amount paid by it to defendants under a policy of insurance.</p>

<p>Damages—negligence.— when city of New York not liable ■— governmental capacity.</p> <p>The city of New York, while conducting and maintaining a building for the board of health, is acting in a governmental capacity and is not liable in damages to one who, while standing on the adjacent sidewalk, was injured by a pane of glass which fell from one of the windows of the building.</p>

<p>Fraternal and mutual benefit associations ■—who are members in good standing — action to recover a death benefit — when complaint dismissed.</p> <p>The various lodges of a fraternal benefit order, whether subordinate or superior, form but one organization although individual lodges may have distinctive rights and liabilities.</p> <p>Where the parent organization scrupulously followed its constitution in dealing with a subordinate lodge which had adopted a resolution to withdraw from the order, the rights of its individual members in the parent organization are forfeited.</p> <p>In an action against the parent organization to recover a death benefit, it appeared that plaintiff’s deceased husband was present at the meeting of his lodge at which a resolution to withdraw from the order was adopted; that the grand master of defendant sent notices to all the members of said lodge to the effect that their membership in the defendant had been terminated and requesting them to rejoin, and that plaintiff’s husband did not avail himself of such invitation. Thereafter the lodge was suspended; the faction adhering to defendant formed a new lodge and the seceding members, severing all affiliation with defendant, organized a membership corporation of which plaintiff’s husband became a member. The day before he died his son, by palpable fraud, attempted to have his father reinstated in the new lodge and tendered payment of overdue assessments. Upon dismissing the complaint upon the merits, held, that plaintiff’s husband was not at the time of his death a member in good standing in the order, having deliberately forfeited his membership therein.</p>

<p>Wills — construction of — trusts— statute of distribution — vested remainders — life tenants i—executors and administrators.</p> <p>Upon a bequest to trustees in trust to collect and pay over the income of a fund to a life tenant and after the death of the life tenant to pay over and distribute the fund the remainder will not vest until the time for payment arrives, and the class of beneficiaries is fixed as of the date of the death of the life tenant and not as of the death of the testator.</p> <p>Testator directed his executors to divide his residuary estate into twenty-two equal portions, four of which he bequeathed to his sister absolutely if she were living at his death, and in case she was not said four portions were bequeathed to testator’s next heirs by blood to be distributed among them according to the statute of distribution which at the death of testator in 1909 provided that “ Mo representation shall be admitted among collaterals after brothers’ and sisters’ descendants.” In the event that the sister was living at the time of testator’s death four other portions of the residuary estate were given in trust for said sister with direction to the trustee to pay over to her the net annual income, quarterly, during her life and at her death to convey, pay over and distribute the whole capital of such four portions among the testator’s next heirs by blood according to the statute of distribution. The testator left him surviving a brother, the descendants of a predeceased brother and sister, also the life tenant, who died leaving her surviving a son, and numerous other nephews and nieces as well as the descendants of a deceased nephew and niece of the testator. Held, that the “ next heirs ” took as members óf a class and that it was clear that testator intended to bequeath no vested remainder to his next of kin; that the nephews and nieces took in their own right and not by representation, and that the grand-nephews and grand-nieces were entitled to take the share which their immediate ancestors would have taken.</p>

<p>Mandamus — when application for, denied — contracts — highways — when bid may not be withdrawn — equity.</p> <p>After a bid or proposal for a highway contract has been deposited with the state commissioner of highways in accordance with the rules for bidding, it may not be withdrawn even with the consent of the commission.</p> <p>Where in the depositing of such a bid a mistake has been made, equity can afford no relief unless such mistake was unintentional.</p> <p>Petitioner at the time of its deposit of a bid for a highway contract was informed that it could not deposit a second and larger bid unless there was deposited therewith an amount equal to three per centum of the amount of such bid. Petitioner brought only a certified check sufficient in amount to be submitted with the first bid, which was enclosed therewith, by mistake. Shortly thereafter petitioner deposited an additional sum in cash and announced that it desired to supersede the first bid, by the second bid, pursuant to which the contract was awarded, but the state comptroller refused to approve the awarding of the contract. Upon an application for a peremptory mandamus to compel the awarding of the contract, held, that there was no such mistake in the deposit of the first bid as equity was called upon to correct, and the application will be denied.</p>

<p>Wills — construction of — charitable corporations — trusts — Supreme Court — when petition dismissed.</p> <p>Upon the death of testator’s widow the testamentary trustees were directed to organize a charitable corporation as a home for Jewish female minors and to pay the residuum of the estate to it, to be applied in the conduct, maintenance and support of said home. Although the trustees had,in hand funds available for the charitable foundation, they, without attempting to form the corporation contemplated by their testator, petitioned for a construction of this provision of the will and contend that the gift is not a charitable use, while the attorney-general urges that it is, and that the trust should be enforced. Held, that justice would be best subserved by a dismissal of the petition without prejudice, with liberty to the parties to raise all questions here presented in any future legal proceeding in this court or elsewhere and the petition is accordingly dismissed.</p> <p>In a suit or proceeding in the Supreme Court in which the attorney-general, as general conservator of charities and public trusts, may present in proper form the whole issue, which is grave, the court may grant much fuller relief than can possibly be given in the present proceeding.</p>

<p>Application to modify a transfer tax order.</p>

<p>Proceedings upon the judicial settlement of the accounts of temporary administrators and of executors.</p>

Appeal by plaintiff from a judgment of the Municipal Court, Manhattan, fourth district, in favor of defendant, after a trial by a judge without a jury.

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

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

<p>Motion for an extra allowance to a referee upon a sale of real property on foreclosure.</p>

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

<p>Election Law — who entitled to vote at primaries for town officers — misdemeanor — Penal Law, § 751.</p> <p>All bona fide members of the Republican party, whether enrolled or unenrolled, may vote at a caucus or primary for the purpose of nominating town officers in the absence of rules or regulations of the county committee relating to the qualification of voters. No enrolled member of any other political party, or any person who, having voted at the political caucus or primary election of any other political party on the same day, or while Ms name was, by his consent or procurement, upon the rolls of a party organization of another party, has any right to vote at said caucus or primary.</p> <p>All proceedings taken at the caucus or unofficial Republican primary held August 28, 1919, in the town of Sidney, Delaware county, including the nomination of town officers, set aside as null and void, and a new caucus directed to be called to which the decision herein should be applied.</p>

<p>Pleading — complaint — implied warranty — damages — municipal corporations.</p> <p>Where a city undertakes to maintain a water system and to supply, at a fixed compensation, water to private consumers for drinking and domestic uses, a complaint in an action for damages by one who contracted typhoid fever from germs in the water supplied by the city to premises rented by him, based upon the theory of the breach of an implied warranty on the part of the city to furnish wholesome water, is good.</p>

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

<p>Mandamus — when peremptory writ of, denied — boards of supervisors have no power to borrow money or to issue negotiable paper except in strict compliance with the statute — County Law, § 45(3)—General Municipal Law, § 5.</p> <p>A board of supervisors has no inherent implied or incidental power to borrow money or to issue negotiable paper in any manner except in strict compliance with the statute.</p> <p>The board of supervisors of Rockland county, in compliance with section 45 of the County Law, pursuant to which, as it stood in 1915, it had submitted to the voters the question of the establishment of a county hospital for tuberculosis at a cost of $50,000, which proposition was carried, purchased real property and built, furnished and equipped a tuberculosis hospital but at an expense far exceeding that originally deemed necessary, and for the purpose of providing funds to pay the expense incurred, issued bonds to the amount of $80,000, the proceeds of which have been expended. The board of supervisors, claiming power to make a temporary loan upon the credit of the county for $40,000 additional, issued to relator drafts in payment of bills for work, labor and services performed in the construction of their hospital. Held, that while the board of supervisors had power to raise said $40,000 or any other sum necessary in the matter, the same could only be raised by a bond issue, as provided by section 45(3) of the County Law.</p> <p>The proposal to raise the $40,000 by temporary loan, which was not included in the tax budget, was in violation of section 5 of the General Municipal Law, and the county treasurer was justified in his refusal to honor the drafts issued to relator, and an application for a peremptory writ of mandamus to compel payment of said drafts will be denied.</p>

<p>Application for an order directing the payment by the administrators with the will annexed out of the funds in their hands of certain judgments and awards of the Probate Court of the county of Washtenaw, Michigan.</p>

<p>Transfer tax — what subject to — joint accounts — statutes—■ Tax Law, § 220(7).</p> <p>Though decedent’s daughter, her sole legatee and devisee, .deposes that a deposit by her of her own funds in both their names payable to “ either or survivor ” was made for the sole purpose of providing funds that might be used by her mother in case of accident or emergency affecting the life or health of deponent, the full amount of the deposit, at the death of the mother, is subject to a transfer tax under section 220(7) of the Tax Law, the joint account having been created since the enactment of said statute.</p>

<p>Judicial settlement of the accounts of the executor. Contested claim.</p>

<p>Proceeding upon the judicial settlement of the accounts of an administrator with the will annexed and trustee.</p>

<p>Action by a traveler for tbe loss of a trunk and contents.</p>

<p>Corporations — who may maintain an action to recover a penalty for failure to furnish financial statements to stockholders — pleading — Stock Corporation Law, § 69.</p> <p>Under section 69 of the Stock Corporation Law one owning five per cent of the capital stock of a domestic corporation, whether a director or not, has an absolute right, upon written request to the treasurer or chief fiscal officer thereof, to a verified statement of the corporate assets and liabilities, and upon tLe treasurer’s failure to comply with such request, duly served, the stockholder, irrespective of his motive, may maintain an action against the treasurer to recover the statutory penalty for his failure to comply with such request.</p> <p>A separate defense in the answer alleging that plaintiff, although a director, has been engaged in another business which competes with that of the corporation; that he is bringing an action against it for arrears of salary although it had been agreed not to press the corporation for money; that plaintiff has daily access to the books of the corporation and is bringing the present suit in bad faith, will be stricken out on motion on the ground that it is insufficient as matter of law.</p>

<p>Assessment and taxation — when application to vacate assessment dismissed — meaning of ! ‘ manufacturing ’ ’ or “mercantile ’ ’ corporation — taxes — contracts — Tax Law, §§ 12, 208 — Laws of 1917, chap. 726.</p> <p>A corporation engaged in the business of furnishing steel structures erected in place on real property in accordance with the plans and specifications of engineers or architects, is neither a “ manufacturing ” nor a “ mercantile ” corporation within the meaning of section 208 of the Tax Law, as added in 1917. The capital of said corporation having been assessed under section 12 of the Tax Law an application to vacate said assessment on the ground that the corporation is a “ manufacturing ” or “ mercantile ” corporation and that by chapter 726 of the Laws of 1917 it is required to pay a tax of three per cent on its net income and is exempt from any tax on its personal property or capital, will be dismissed.</p>

Motion for a new trial in a criminal prosecution for murder in the first degree on the ground of newly discovered evidence*

<p>Matter of awarding costs upon an accounting of an assignee for the benefit of creditors.</p>

<p>Application for an order under sections 125 and 134 of the Election Law.</p>

<p>Motion upon notice and affidavits to vacate a temporary injunction granted ex parte.</p>

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

<p>Action for partition.</p>

<p>Actions — what is a chose in — separation agreement — pleading — contracts.</p> <p>The right of a wife to payments due under a separation agreement is a chose in action and assignable.</p> <p>Where in an action to recover payments due and payable pursuant to the separation agreement made a part of the complaint, any facts recited therein are to be considered as alleged in the pleading.</p> <p>An objection that there is no allegation that plaintiff’s assignor has not remarried is met by an allegation that she has duly performed all the conditions of the agreement on her part, and, under such an allegation, the facts may be shown.</p>

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

Application under section 57 of the Public Service Commissions Law for a writ of mandamus to compel the defendant to construct and operate a street surface railroad on Richmond road or old stone road, between Bulls Head and New Springville and Richmond Turnpike between Bulls Head and Linoleum-ville, on Staten Island.

<p>Action to set aside as fraudulent an agreement between the parties hereto.</p>