Volume 109 — New York Miscellaneous Reports

<p>Cebtiobaei proceedings.</p>

<p>Writ of prohibition — when application for an alternative writ granted — street railways — receivers — corporations — when public service commission has not jurisdiction to increase rate of fare on street surface railroads.</p> <p>An application by the city of Mew York for an alternative writ of prohibition directing the public service commission, first district, and the receivers of the Manhattan and Queens Traction Corporation commanding it and them to desist from any further proceedings in the matter of the application of said receivers for permission to increase the rate of fare upon the street surface railroads owned by said corporation, will be granted in view of the decision in the Quinby Case (223 M. Y. 244), reaffirmed in later decisions of the Court of Appeals, holding that the public service commission, in a ease like the present one, has not jurisdiction to grant permission to increase the rate of fare.</p>

<p>Contracts — parties to — violation of — street railways — labor unions — associations — when employer entitled to an injunction pendente lite.</p> <p>One party to a contract has a right of action against a third person who entices the other party to the contract to break it.</p> <p>An agreement between plaintiff, a street railway company, and the “Amalgamated Association of Street and Electric Railway Employees of America” provided that any dispute arising between them should be submitted to arbitration, but without the existence of any such dispute, so far as known to plaintiff, the association called a strike of motormen and conductors and induced them to go out, whereupon plaintiff resolved not to employ any member of said association on its line nor to employ any of its own employees who should thereafter join said association, and in pursuance of such policy plaintiff entered into a contract with practically all of its employees upon the express understanding that each of them was not a member of said association and would not become so while in the employ of plaintiff or other companies comprising its system. Each of said employees further agreed that while he was in plaintiff’s employ or that of any of said other companies he would make no effort to induce any of his co-employees to become a member of the “Amalgamated Association of Street and Electric Railway Employees of America” and when more than four hundred of plaintiff’s motormen and conductors, in violation of their contract, did join said association plaintiff discharged them, whereupon said association called another strike on the lines of plaintiff. Held, that in an action against the members of said association in which the real issue seems to be a contest between plaintiff and the association as to whether plaintiff should recognize the association or not, plaintiff, in order to maintain the status quo, was entitled to an injunction pendente lite enjoining defendants served from enticing or persuading or attempting to persuade or entice such employees of the plaintiff as have entered into the contracts in question, on the ground that otherwise plaintiff will suffer irreparable damage.</p>

<p>Banks — liability of, for payment of a forged check — negotiable instruments — damages — forgery — evidence.</p> <p>Plaintiffs’ confidential clerk, who had forged a series of checks on the bank where plaintiffs had a general account, drew a check on the defendant, a trust company, where plaintiffs also had an account, to the order of said bank which he deposited therein to the credit of plaintiffs’ account, and said check was paid by the trust company. Held, that as by the exercise of ordinary care defendant could have discovered that the name of plaintiffs’ firm on the check was a clumsy forgery, defendant could not avoid liability for having paid the check upon the plea that the deposit of the proceeds thereof constituted a payment of the amount to plaintiffs, hence they had sustained no damage.</p> <p>While defendant’s payment of the forged cheek enabled the confidential clerk not only to cover up the defalcations up to the time he drew the check in question for an indefinite period, it also enabled him to increase his ill-gotten gains in excess of the amount of said check. Held,, that it not appearing that plaintiffs had ratified the collection of the cheek by the bank they were entitled to judgment for the full amount claimed.</p> <p>The bank rendered monthly statements to plaintiffs which were regularly examined but the reason why plaintiffs were misled into accepting the accounts as correct was that they were usually gone over in the presence of the forger, who so manipulated the examinations as to throw plaintiffs off their guard in discovering his criminalities. Held, that upon the proof plaintiffs were not chargeable with failure to exercise ordinary care in cheeldng up the monthly bank statements.</p>

<p>Application to punish for contempt.</p>

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

<p>Tenants in common — who are — trusts — evidence — mortgages .— actions.</p> <p>One tenant in common cannot purchase an outstanding claim or title to the exclusion of his co-tenant, but if he does, the purchase is presumed to be for the benefit of all.</p> <p>Upon the purchase by E. and R. of certain premises they gave a purchase money mortgage and the balance of the purchase price was paid in cash and the deed-taken in the name of R.’s wife. By arrangement among all parties in interest, R. collected the rents and paid them to E., who applied them to the carrying charges and in reduction of the second mortgage, and in case of a deficiency E. and R. were each to pay one-half thereof. The wife of R. died intestate, leaving her surviving her husband and an infant daughter, who there-</p> <p>upon became seized of one-half of the property subject to her father’s tenancy by the courtesy. At the sale in foreclosure of said mortgage E. bid in the property but his brother signed the terms of sale. E. assigned his bid to a niece, who never before had owned any real estate, and the property was conveyed to her by the referee, the mortgagee in the foreclosure talcing back a purchase money mortgage, and a sister of said niece paid the ten per cent of the purchase price on the day of sale. In an action to impress a trust on the property in favor of the infant child of R. the defendant E. disclaimed any present interest in the property, and there was no direct evidence on the point, nor that his purpose in permitting the foreclosure was to cut off plaintiff’s interest in the property, but the circumstances attending the transactions and the course of dealing between the parties lead to the conclusion that E. is still the owner. Held, that the presumption that he purchased not for himself alone but for plaintiff, his co-tenant, had not been overcome, and that upon a finding that the real estate is impressed with a trust in favor of plaintiff to the extent of her one-half interest as a tenant in common she was entitled to a conveyance of such interest by the defendant, who had received the referee’s deed, and to an accounting of rents and profits, subject, however, to contribution by her of her share of all lawful expenditures made by the defendants upon the property.</p>

<p>Surrogates ’ Courts — jurisdiction — wills — trial — Code Civ.</p> <p>Pro. § 2550.</p> <p>After a jury trial in a probate proceeding the court directed the entry of a decree admitting the will to probate valid to pass personal property and ordered that supplemental citations issue to certain of the next of kin who, though they had not been named in the petition for probate, were present at the trial. Held, that not until they had been duly served with a supplemental citation did the court acquire jurisdiction of them and that notwithstanding the decree directed to be entered, they had a right to file objections to the probate of the will.</p> <p>Under section 2550 of the Code of Civil Procedure, a decree should be entered establishing the will as against the parties of whom the court had jurisdiction at the time of the trial, m accordance with the adjudication then made, and that the objections filed by the persons cited since the conclusion of the last trial should be heard and determined in due course.</p>

<p>Proceeding upon the accounting of a trustee.</p>

<p>Naturalization — filing of declaration to become a citizen — who may be considered residents of the United States — Canal Zone — non-residents — aliens.</p> <p>An alien came to this country in May, 1905, and remained here until May, 1907, when he entered the employ of - the government of the United States in the Canal Zone, and while here in 1908, on vacation allowed to him, he filed a declaration of his intention to become a citizen. Upon finding on his final return from the Canal Zone in May, 1916, that his time to apply for second papers had expired, he, on the seventeenth of that month, filed his declaration to become a citizen and on September 4, 1918, filed his petition for - second papers. Upon objection to his admission to citizenship on the ground of non-residence in the United States for five years, held, that subdivision 7 of the Act of May 9, 1918, which permits residence in the Canal Zone to be considered as actual residence in the United States in certain cases and provides that in those cases only residence in the Canal Zone may be considered residence in the United States, did not apply and that an order adjourning the application to a day certain should be entered on notice to the chief naturalization examiner and directing the clerk to notify the applicant to then appear with his witnesses.</p>

Application in a summary proceeding under the Election Law for an order requiring the hoard of elections to cause the name of a candidate to appear and be printed upon the official ballot.

<p>Motion to compel the purchaser of an infant’s real estate to accept title.</p>

Motions by claimant for orders vacating and setting-aside orders dismissing claims and to restore the claims to the calendar.

<p>Claims —. against the state for personal injuries — evidence — damages — bridges — automobiles •— negligence.</p> <p>An automobile in which were the three claimants herein was being driven south along a street in the city of Syracuse connecting with a bridge crossing the Oswego canal, just as the bridge was being raised to permit the passage of a boat. The automobile- ran off the southerly or southwesterly end of the bridge, which was elevated a short distance from the street level, and tipped over. Upon the hearing of a claim for damages for personal injuries sustained by each of the claimants, the evidence disclosed that though there were no lights or signals of any kind on the bridge other than an electric bell and gong, installed by the state, both of which were ringing at and before the time when the automobile entered upon the bridge, and that while there was a flagman at either end of the bridge, there were no guard gates at the approaches because with that particular type of bridge such gates were impractical. Held, that the means provided to warn users of the streets when the bridge was about to be operated, and to guard against accidents, were reasonable and ample, if the flagmen were reasonably attentive to their duties.</p> <p>All of the claimants testified positively that as they neared the bridge, the flagman at the north approach motioned to them to pass over the bridge when he knew it was about to be raised. This testimony was denied by the flagman who was corroborated by the flagman at the other end of the bridge, who at the time was at „ least seventy or eighty feet distant from the other flagman. Held, that the evidence, though in conflict, fairly established that claimants were invited to enter upon the bridge by the one placed there by the state to notify them when danger existed and to guard their safety.</p> <p>The claimants in acting upon the invitation of the flagman to proceed were not negligent but were justified in concluding that it was safe for them to do so.</p>

<p>Appeal —meaning of “ doing business ’’-non-residents — transfer tax —Tax Law, § 220(2).</p> <p>The investment and reinvestment of a person’s own money does not constitute “doing business” within the meaning of section 220(2) of the Tax Law, .</p> <p>On appeal by the state comptroller from an order assessing a transfer tax upon the estate of a non-resident, a finding of the transfer tax appraiser that decedent in making, in this state, regular and frequent investments and reinvestments of her own money was not at the time of her death engaged in “ business ” in this state within the meaning of section 220(2), will be affirmed.</p>

<p>Motion by the defendant to compel the plaintiff to accept its answer.</p>

<p>Motion to continue an injunction pendente lite.</p>

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

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

<p>Habeas corpus proceedings.</p>

Cebtioeaei by the People, on the relation of August Small against John P. Leo and others, constituting the board of appeals of the city of New York.

This action is brought by the plaintiff for separation on the ground of cruel and inhuman conduct. The defendant moves for leave to malee and serve a supplementary answer, setting up acts of adultery committed by plaintiff prior to and subsequent to the commencement of the action.

<p>Justices’ Courts — jurisdiction of — city of Utica — what may be regarded as a “ town ’ ’— Code Civ. Pro. § 2869.</p> <p>For the purposes of section 2869 of the Code of Civil Procedure the city of Utica may be regarded as a “ town.”</p> <p>The Justice’s Court of the city of Utica has jurisdiction of an action where both of the parties are residents of an adjoining town where the summons was served.</p>

<p>Accounting — executors and administrators — issues should be raised by objections to account.</p> <p>Upon a creditor’s application to compel executors to account, all the issues may be raised by objections in the usual way, and the practice of one of the executors filing an answer asking that the court, before directing any accounting, construe an agreement of guaranty entered into by said executor, the testator and a third person, and to determine the extent of the separate liability of the estate and its interest in certain securities, should neither be encouraged nor sanctioned.</p>

<p>Transfer tax — determination of rate of taxation of remainder — life estates.</p> <p>Where testamentary trustees may in their discretion pay any part of the principal of the residuary estate to the widow of their testator, the remainder, being subject to a transfer tax at the highest rate which under any contingency would be possible, should be added to the value of the widow’s life estate for the purpose of determining the rate of taxation of such remainder.</p>

<p>Arbitrations — Municipal Court of city of New York — rules — awards — counterclaim—Code Civ. Pro. § 2374(4).</p> <p>The arbitration provided for by the Municipal Court rules contemplates a submission of all differences between the parties to an action brought in said court, and the award should be so definite and certain as to preclude any future litigation by either party involving the same matters.</p> <p>Section 2374(4) of the Code of Civil Procedure which provides that an award must be “ a mutual, final and definite award upon the subject matter submitted” applies to the Municipal Court of the city of New York and an award which is silent as to defendant’s counterclaim, which was a part of the subject matter submitted, is fatally defective, and the judgment entered thereon will be reversed and a new trial ordered.</p>

<p>Municipal Court of city of New York — when reply cannot be ordered — pleading.</p> <p>A justice of the Municipal Court of the city of New York has no power to make an order requiring a reply to be filed to defenses pleaded in an answer.</p>

<p>Libel — when defendant not liable for publishing — when motion to vacate an order of arrest granted — slander.</p> <p>Where in an action for a newspaper libel brought by a resident of the city of New York having large property interests in the republic of Costa Rica the only fact in dispute is whether the defendant, the expelled president of said republic, had requested the publication of a letter written by him to the chairman of the committee on foreign affairs of the United States senate, a portion of which was the libel complained of, the letter in full being set forth as a portion of an entire article printed in the New York Herald, both the defendant and the newspaper reporter who interviewed him swear that he did not request such publication, it must be taken, for the purposes of a motion to vacate an order for defendant’s arrest, that he did not.</p> <p>Where there is nothing to show that defendant procured the alleged libelous matter to be published or did anything which</p> <p>induced its publication other than the mere act of furnishing information to one known to be a reporter, the remedy of the plaintiff is against those who, as their own independent act, printed and published the alleged libel, and defendant’s motion to vacate the order of arrest will be granted.</p>

Motion by the surety for an order directing the comptroller of the city of New York to refund to the said surety the sum of $1,000 heretofore paid to him in satisfaction of a judgment entered on the forfeiture . of a bail bond.

<p>Attachment.— warrant of — when motion to vacate, denied — Code Civ. Pro. § 682.</p> <p>Where a junior attaching creditor, upon his motion made under section 682 of the Code of Civil Procedure to vacate a senior warrant of attachment, fails to present the papers upon which his own attachment was granted, the motion to vacate will be denied.</p>

<p>Action to compel the specific performance of a contract.</p>

<p>Receivers — permanent — actions — corporations — pleading — General Corporation Law, § 239(1) -—Membership Corporations Law, § 11.</p> <p>The appointment of a permanent receiver of a dissolved membership corporation neither vests in him the personal right of its creditors to enforce the liability of directors under section 11 of of the Membership Corporations Law nor does it enable him to assert or' enforce the rights of the corporation under section 239(1) of the General Corporation Law.</p> <p>An order of the Supreme Court empowering such a receiver to commence an action to enforce such rights is no foundation for a title to the cause of action.</p> <p>The complaint in an action brought by such a receiver against the creditors and former directors of the corporation considered, and a demurrer thereto sustained on the ground that plaintiff had not the legal capacity to sue.</p>

<p>Motion to vacate order for examination of defendant before trial.</p>

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

<p>Executors and administrators — when application to revoke letters of administration denied — evidence.</p> <p>Where the evidence shows that at the death of decedent a common-law marriage was subsisting between him and the administratrix of his estate, who had two children by him, an application by his aunt to revoke the letters of administration will be denied.</p>

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

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

<p>Motion for an order directing that judgment for plaintiff be marked satisfied and canceled of record.</p>

<p>Motion for interpleader.</p>

<p>Action in ejectment.</p>

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

<p>Trusts — deed of — construction of — antenuptial agreement — vesting — accounting — general assignment for benefit of creditors — Real Prop. Law, § 110.</p> <p>In 1880, a widower with four children executed a trust deed creating an antenuptial agreement by which he intended that the entire income of the trust fund should be paid to his intended wife and that upon her death it should revert to his estate. In 1884, he made a general assignment for the benefit of creditors and died intestate in 1891, leaving him surviving children and grandchildren. His second wife, the beneficiary under the trust deed, died in 1918. In an action for the construction of the trust deed and for the judicial settlement of the accounts of the trustees, held, that the claim of the assignee for the benefit of creditors expired by operation of law (Real Prop. Law, § 110.)</p> <p>Upon the death of the second wife the estate in remainder vested absolutely in the settlor of the trust and the plaintiff, out of the trust funds remaining in his hands, should pay to the executrices of said wife one-third of the undisposed principal and the balance to the children and grandchildren of the settlor of the trust.</p>

<p>Negligence — action for damages for personal injuries — trial — carriers ■—evidence — interstate commerce — when motion for a new trial denied — verdict—Boiler Inspection Act.</p> <p>In an action to recover damages for the killing of plaintiff’s intestate, a head brakeman on defendant’s railroad, while at work on a locomotive which had been duly inspected by the inspectors of the interstate commerce commission, it appeared that at the time of the accident there was on the left side of the tank about two feet from the grab handle used in connection with the steps between the tender and the locomotive a certain hook, the construction and maintenance of which plaintiff claimed was in itself dangerous in that it was liable to come in contact with the clothing of defendant’s employees, including the deceased, in passing up and down said steps while in the discharge of their duty, thereby rendering them liable to accidents and injury by reason of the close proximity of the hook. Plaintiff also claimed that the hook was the proximate cause of the death of her intestate in that in some manner his clothing came in contract with the hook by means whereof he was thrown under the wheels of the ears and his death resulted. One of the defendant’s expert witnesses admitted that the hook could be guarded when not in use but that no thought or attention had been given to it. Held, that whether there had been a violation of the Boiler Inspection Act and the amendments thereto which require common carriers engaged in interstate commerce to equip their locomotives with safe and suitable boilers and appurtenances thereto was a question for the jury.</p> <p>Held, also, that whether the hook was the proximate cause of the death of plaintiff’s intestate was a question for the jury though how or in what manner he met his death was more or less a matter of inference.</p> <p>The jury was instructed that they could not guess or surmise or speculate that the accident might or might not have happened in a certain way, but that a finding in that respect must be based upon a fair preponderance of evidence, and the charge of the court with respect to the degree of care the defendant was required to exercise in furnishing the decedent with a safe and suitable locomotive and not causing it to be properly inspected for defects, if any, was more favorable to the defendant than it had a right to expect. Held, that its motion for a new trial after a verdict in favor of plaintiff will be denied.</p>

<p>Depositions — examination before trial — when justice of Supreme Court in New York county has no power to vacate or modify an order granted by a justice in Kings county — motions and orders.</p> <p>A justice of the Supreme Court holding a Special Term in New York county whether sitting as a judge out of court or sitting in court has no power to entertain a motion to vacate or modify an order granted by a Supreme Court justice in Kings county for the examination of a defendant before trial even though the order directs that the examination of certain non-residents of Kings county be held before the justice in New York county.</p> <p>Whére the justice in New York county upon a motion improperly made before him vacates the order for defendant’s examination, his order is void and the order for examination still stands.</p> <p>A motion to vacate the order for defendant’s examination denied but said order modified by strildng out a provision as to certain items of receipts and disbursements and a direction for the production of defendant’s books and papers.</p>

<p>Application requiring the city clerk of New York to amend a marriage license.</p>

<p>Habeas corpus proceeding.</p>

<p>Cebtiobabi proceedings.</p>

<p>Specific performance — contract to convey real estate — demurrer to complaint overruled.</p> <p>Where the complaint in an action by the assignee of the vendee to compel specific performance of a contract to convey real estate alleges that plaintiff “ is ready and willing and hereby offers to pay the residue of the purchase money to the defendant and to give the purchase money bond, executed by plaintiff’s assignor or by this plaintiff or by both, as the defendant may elect, and the purchase money mortgage as • stipulated in the aforesaid written contract,” a demurrer to</p> <p>the complaint on the ground that the allegation therein relative to the assignment of the contract in suit shows that it does not impose any obligations or covenants or agreements on the part of the plaintiff to perform those which his assignor made to the defendant, must be overruled upon the ground that while it may be doubted whether plaintiff’s offer would be sufficient foundation for a separate and later action to enforce it, there is no doubt that it can be enforced in the present action as a basis and condition for any relief given to the plaintiff.</p>

<p>Appeals from order fixing the transfer tax.</p>

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

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

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

<p>Cross-motions for judgment on the pleadings, consisting of complaint, answer and demurrer by plaintiff to separate defense, for insufficiency.</p>

<p>Damages ■— unliquidated— replevin — judgments — trial—undertakings — tender.</p> <p>Where a plaintiff recovers judgment for the return of certain chattels or their value as fixed at the trial, she is not bound to accept a tender of a part of the chattels and the value of such as were not returned.</p> <p>In an action upon undertakings given upon successive appeals from a judgment awarding plaintiff the possession of certain chattels or if a part thereof could not be obtained that she be paid their value, as fixed at the trial, she is entitled to recover damages for failure to deliver the part of the chattels which were not returned.</p> <p>Such damages being unliquidated, plaintiff was not bound to accept the defendant’s valuation of the chattels not returned, for even if the amount tendered was sufficient, such tender of itself would neither satisfy the judgment nor defeat the cause of action for damages.</p>

<p>Alien enemies — who are — right of retransfer of right of action by alien property custodian — parties — pleading — when demurrer sustained — Trading with the Enemy Act of October 6, 1917, as amended July 11, 1919.</p> <p>The provision of the Trading with the Enemy Act of October 6, 1917, as amended July 11, 1919, which authorized the return of property held by the alien property custodian to</p> <p>citizens of our allies solely by reason, of residence in that portion of the territory of any nation associated with the United States in the prosecution of the war which was occupied by military or naval forces of Germany or Austria-Hun-gory or their allies, if such persons are citizens or subjects of such associated nation, was designed to confer power to retransfer to subjects, citizens or denizens of allies of the United States who were in occupied territory of allied nations during the war.</p> <p>The privilege thus granted is founded upon the doctrine of post liminium, and residents of the German empire have no valid claim to a right of retransfer to them by the alien property custodian of a right of action, and where two such residents are joined as plaintiffs in an action relating to an alleged retransfer, with other joint owners who are actual residents of Prague, in Czeeho-SIovakia, and not in the category of alien enemies, a demurrer to the complaint on the ground of misjoinder of parties plaintiff will be sustained.</p>

<p>Action upon a promissory note.</p>

<p>Wills — construction of.— power of appointment under — trusts — codicils — antenuptial agreements — actions — residuary legatees.</p> <p>An antenuptial agreement secured to the surviving husband or wife a one-fourth share in the property left by the other at death. The father of the intended husband, who as a party to the agreement covenanted to make no discrimination between his children in his will, devised and bequeathed one-fourth of his residuary estate in trust to pay over to said son any part of the principal at such times as he might require except $50,000 in certain bonds which in any event were to, remain with the trustee, and he made substantially similar provision for each of his other children. Thereafter, by a seventh codicil, the share left to said son was bequeathed to plaintiff in trust to pay the income to or for the use of said son during his life and at his death the trust was to cease and the principal and unpaid income were to be divided among his heirs at law,</p> <p>with a proviso that a certain dwelling house should not be included in the trust but should go to said son, his heirs and assigns forever. The son and his wife both survived the testator who made no provision for her by his will. Held, that said codicil constituted a discrimination against said son and so violated the antenuptial agreement.</p> <p>By the judgment in an action brought by the son the trust created under said codicil was abrogated, the remainders extinguished and it was adjudged that the trustee retain the $50,000 and hold the same upon the trusts created by the will and first six codicils thereto for the benefit of said son and the remaindermen and the balance of the trust fund as directed by said judgment was paid over to the son who died leaving a will by which his widow was given one-fourth of his estate and the remainder, including all property which he had or over which he might have the power of disposition under the will of his father or otherwise, was left to another person. Both his widow and the residuary legatee survived him. Under the father’s will the trustees upon the death of said son were directed to pay to his widow such portion of the trust fund then remaining in their hands as might be necessary to secure her the one-fourth part of her husband’s estate as provided by the marriage contract. In an action for the settlement of the accounts of the testamentary trustee under the will of the father and for a decree directing the distribution of the $50,000, held, that the rights of the widow of said son were, under the will of her father-in-law, made dependent upon her rights under the marriage settlement.</p> <p>The son having performed the voluntary and gratuitous obligation of his father to secure his daughter-in-law her rights under the marriage settlement, her husband’s right to exercise the power of appointment under the will of his father in favor of one other than his wife could not be questioned and the entire fund should go as he appointed.</p>

<p>Motion for a new trial.</p>

<p>Lease — when guaranty covers renewal term — landlord and tenant.</p> <p>Where a tenant, having an option to renew his lease for another term of five years, holds over and pays the rent for several months after the expiration of the original term, a contract of guaranty for his faithful performance of the lease covers the second term.</p>

<p>Habeas corpus—extradition — indictment — when relator entitled to discharge.</p> <p>The questions presented on habeas corpus for relator’s discharge under an interstate extradition warrant to answer an indictment, are the identity of the relator; whether the indictment charges him with the commission of a crime under the laws of the demanding state, and whether he is in a legal sense a “fugitive from justice.”</p> <p>Relator upon his marriage in the state of New Jersey brought his wife to his parents’ home in the city of Buffalo where he has always resided, and within a day or so the wife had epileptic fits and confessed that she and her parents had deceived and defrauded relator as to her physical condition and had made a false oath as to her health to obtain the marriage license. After service upon her in this state</p> <p>of the summons and complaint in an action to annul the marriage on the grounds of fraud and physical incapacity, which action was not defended, relator at his wife’s request had her taken back to her parents’ home in New Jersey. The day after the entry of the final judgment decreeing that the marriage was null and void from its date, relator, in an indictment which did not allege that he was or is a resident of the state of New Jersey, was charged with having deserted his wife at a particular place therein and unlawfully refusing and neglecting to provide for and maintain her. Held, that defendant was immune from extradition and entitled to his discharge.</p>

<p>Proceedings on the construction of a will in an uncontested probate.</p>

<p>Proceedings on an application for an order modifying an order assessing a transfer tax.</p>

<p>Wills — trusts — method of ascertaining residuary estate.</p> <p>Testatrix, after certain bequests to each of her three sons, directed her executors to divide the remainder of her estate into three equal shares. She devised and bequeathed to each of two sons one of the shares absolutely and the remaining share was given in trust to invest with direction to pay the net income thereof to a third son for life. Held, that under the rule laid down in Matter of Benson, 90 N". Y. 499, one-third of the residuary estate, as of the date of the death of testatrix, should be set apart for the trust created for the third son and one-third of the total income of the residuary estate paid for his benefit to the trustee.</p> <p>All the income accrued upon the remaining two-thirds of the residuary estate, together with interest within one year from the grant of letters testamentary upon a money legacy given to the third son, should be divided into three equal parts and one of them paid to the trustee of the third son.</p>

<p>Petition by a surety company to be released from its bond.</p>

<p>Proceeding brought by a tenant under sections 2233, 2245, Code of Civil Procedure, to remove a landlord for an unlawful entry and detainer.</p>

<p>Corporations.— sale of corporate stock — when stockholders may he considered as partners — contracts — good will — injunctions — inspection of books and papers.</p> <p>The owners of all the stock of a corporation having no debts are substantially partners in their relation to a contract for the sale of the stock and one of them may sue for a breach of the contract.</p> <p>Where two of the parties to such a contract each for himself agreed that the sale of the stock should include the good will of the corporation with full enjoyment thereof the purchaser in an action for breach of the contract, upon proof that one of the defendants in violation of the contract had organized the defendant corporation which he and the remaining defendants are using as a cloak to avoid the effect of the contract with plaintiff and to damage him in his business, the plaintiff is entitled to an injunction restraining defendants from interfering with the good will acquired under the contract for the sale of the stock.</p> <p>A release executed by plaintiff which discharged any right of action against the parties and which was exchanged between</p> <p>them in performance of conditions in the contract for the sale of the stock did not cut off plaintiff’s right of action for breach of the contract.</p> <p>In such an action plaintiff will be granted an order for the inspection of certain books and papers under the control of the defendants other than the certificate of incorporation, which is a matter of public record.</p>

<p>Motion to intervene and oppose change of name by a bank.</p>

<p>Husband and wife —: presumption of death >— when marriage will not be annulled.</p> <p>Where it does not appear that defendant’s former husband had absented himself for five years her common-law marriage to plaintiff in 1894 is void.</p> <p>Where in 1900, after investigation and in the honest belief that her former husband is dead, a ceremonial marriage was entered into by her with plaintiff, said marriage, though voidable, is not void.</p> <p>In an action to annul said marriage on the ground that at the time it was entered into the defendant had a former husband living, it appeared that plaintiff was acquainted with defendant and her former husband before his first disappearance and caused investigations to be made which led to the conclusion that he was dead. It also appeared that though plaintiff was informed in 1905 of the former husband’s reappearance, he continued to live with defendant as her husband and though he assured her that he would stand by her, he, in 1916, procured a Nevada divorce from her upon constructive service of the papers. The next year they became reconciled and continued to live together almost up to the time of the trial. Upon granting judgment dismissing the complaint upon the merits, held, that as no competent evidence was produced that the former husband had been heard from within seven years last past the presumption was that he was dead, and in the circumstances disclosed it would be inequitable to grant the decree of annulment.</p>

<p>Contempt — comptroller of city of New York — injunctions — jurisdiction — Code Civ. Pro. § 610.</p> <p>A resolution of the board of estimate and apportionment of the city of New York adopted at a meeting held February 7, 1919, authorized an issue of the corporate stock of the city for purposes set forth in the resolution. On February 13, 1919, the summons and complaint in a taxpayer’s action to restar n the comptroller and other city officials from proceeding und-</p> <p>said resolution, on the ground that the issue of said stock and the contemplated use of the proceeds of a sale thereof was illegal, were personally served upon the comptroller together with a restraining order and on the return of the order to show cause an injunction pendente lite was granted, which was affirmed by the Court of Appeals. Plaintiff charges specific violations by the comptroller of the injunction on the 15th and 17th of February, 1919. The comptroller claims that two days before the service of the restraining order upon him each and every step necessary for the issuing of the stock had been fully completed and the transaction closed, so far as his office was concerned. Held, that good faith on the part of the comptroller, who in nowise recognized the restraining order, required him to take affirmative measures to cheek any further acts necessary to consummate the forbidden transaction and, though he were guilty of no overt act of commission, he was guilty of a very serious act of omission in failing to communicate to the city authorities and also to his subordinates the fact that to his knowledge the injunction had been issued, and a motion to punish him for contempt will be granted.</p> <p>An objection that the injunction order was void and inoperative at the time the comptroller was charged with violations thereof, because of the non-recital of the grounds upon which it was obtained, as required by section 610 of the Code of Civil Procedure, is without merit; the alleged infirmity is a mere irregularity and not jurisdictional.</p>

<p>Injunctions — when motion for an injunction pendente lite will be denied — labor unions — pleading.</p> <p>A local union of the “ International Association of Bridge, Structural and Ornamental Ironworkers ” and the members of the union must seek their remedy for an alleged wrongful suspension from the parent organization, as provided by the rules, regulations and by-laws of the organization itself.</p> <p>Where by the complaint in an action for equitable relief upon a claim that plaintiffs, members of a local union of said association, and the local union have been illegally suspended from membership therein, it affirmatively appears that an appeal may be taken to the convention of the association to be held in 1920; that the plaintiffs intend to take such appeal and that pending the hearing and determination thereof the rights of all concerned are fully protected by the by-laws, the court will not interfere, and plaintiffs’ motion for an injunction pendente lite will be denied.</p>

<p>Action for dower.</p>

<p>Wills — construction of — when absolute gift cannot be cut down by a later provision of a will — when legacies not chargeable upon real estate.</p> <p>An absolute gift cannot be cut down by a later provision of the will except by language which is as clear as that which created the gift.</p> <p>That testator, in making a bequest of all his real estate and personal property to one of his daughters, failed to make use of the word “ devise ” is of no moment, and where the condition of the estate at the time the will was made furnishes no ground for assuming an intention that legacies given by later clauses should be charged upon the. real estate, they must be paid out of the personal property.</p>

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

Application to vacate and set aside the transcript of a decree issued by the clerk of this court, and to vacate and set aside the docket of the judgment docketed thereon in the Supreme Court.

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

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

<p>Wills — when one of duplicate wills cannot be proved.</p> <p>Where decedent, having decided to change her will which had been made in duplicate, destroyed the duplicate which was in her personal possession about a year prior to her death, with intention to revoke the will, probate of the other duplicate will be denied.</p>

<p>Motion by plaintiffs for a verdict and motion by defendant for a new trial.</p>

<p>Summons — service of — non-residents — when motion to vacate service denied.</p> <p>Where it does not clearly appear that the defendant in a Municipal Court action is a non-resident of this state, he will not be so regarded for the purposes of a motion to vacate and set aside the service of the summons and complaint upon him, and if, upon the facts presented, it cannot be said that he is within the rule which protects from service of process one who voluntarily attends in a given jurisdiction, as a witness, the motion will be denied.</p>

<p>Judgments—default — equity — when findings of fact and conclusions of law need not be stated in decision — title.</p> <p>Upon an application for judgment upon default in an action to determine a claim to real property it is not necessary to make a decision separately stating findings of fact and conclusions of law; it is sufficient for the court, in conformity with the practice in equity, to sign the judgment; not even an order therefor is necessary.</p> <p>Where in such an action the allegations of the complaint are admitted by failure to answer, findings are neither necessary nor proper, though requested on the ground that a certain title insurance company will not insure the title unless the judgment is based upon findings.</p>

<p>Action to have a deed absolute on its face declared to be a mortgage.</p>

<p>Husband and wife — tenants by entirety — quality of ownership not changed by will — mortgages — foreclosure — appeal.</p> <p>A husband and his wife, the owners of certain premises as tenants by the entirety, made a testamentary paper which they duly executed as a will. He died without malting any other will, and after the death of the wife, by separate decrees, the said paper writing was admitted to probate as the last will of each of them. Held, that there being no direct evidence aliunde the will of any contract to make mutual wills, and the paper not containing intrinsic evidence to support such a conclusion, the quality of their ownership in the property as tenants by the entirety was not changed so as to defeat the absolute ownership of the wife,' as survivor, and one of her children to whom</p> <p>she gave a mortgage upon the property as a wedding present was entitled to judgment as prayed for in the complaint in an action to foreclose the mortgage, but the other children of the mortgagor may redeem from the sale in foreclosure upon paying four-fifths of the principal of the mortgage into court, with interest from the death of their mother.</p> <p>Where the order of the Appellate Division which reversed an order denying a motion to set aside the judgment of foreclosure and the sale thereunder directed that the judgment “ stand until the final determination of the issues raised by the answer of the appellant ” the order of reversal which provided for the service of an answer and the trial of the issues arising thereon must be construed as an order opening the appellant’s default.</p>

<p>Heaeieg upon the return to a writ of certiorari to review a decision of the board of appeals of the city of New York.</p>

Proceeding for the judicial construction of the 1st paragraph of the last will and testament of Amanda C. Reynolds, deceased, under section 2615 of the Code of Civil Procedure. The testatrix, Amanda C. Reynolds, died a resident of the town of Roxbury in the county df Delaware on or about the 29th day of November, 1914. Her last will and testament was duly admitted to probate by the Surrogate’s Court of the county of Delaware on the 15th day of February, 1915.

<p>Proceedings on an application for the probate of a will.</p>

<p>Wills — non-residents — accounting by executor — testamentary trustees i—Surrogates’ Courts — bonds — Code Civ. Pro. §§ 2564, 2641.</p> <p>Where the will of a non-resident, in an original proceeding, is admitted to probate in the county of New York an accounting by the executor is properly before the surrogate and an objection that the court has not jurisdiction of the subject matter will be overruled.</p> <p>The words “ testamentary trustee ” in section 2564 of the Code of Civil Procedure, do not apply to testamentary trustees appointed under the will of a non-resident, probated in this state.</p> <p>While the provisions of said section, under which an alien, not an inhabitant of this state, is not competent to serve either as an executor, administrator, testamentary trustee or guardian, are general in character, they are limited by section 2641 of said Code, and an objection that payments made to the trustees named in the will should not be approved on the ground that they are alien non-residents, will be overruled.</p> <p>The executor having paid over the trust funds to the testamentary trustees, as directed by the will, a further objection that said trustees, if qualified to act, should give a bond and file their oaths of office as required by the Code of Civil Procedure, must also be overruled.</p>

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

<p>Trusts — direction to testamentary trustee to convert the residuary estate into money — wills — accumulation — accounting by trustees.</p> <p>A will directed the testamentary trustee to convert the residuary estate into money and to invest and hold the same in trust during the lifetime of testator’s two daughters, who survived him, or the survivor of them, with direction to pay to each of them annually a certain sum out of the income. Upon the death of either, leaving descendants, a like sum was to be distributed among them during the lifetime of the surviving daughter and upon the death of both daughters the principal of the estate was to be distributed to their descendants per stirpes, but there was no direction as to the accumulation of income during the minority of any one. Upon an accounting by the trustee it appeared that both daughters are living, one having two children, the other none. Held, that as the surplus income could not be validly accumulated, it necessarily passed as undisposed of assets to the persons entitled to the next eventual estate, to wit, the testator’s grandchildren.</p>

<p>Application for an order directing payment of interest on bonds deposited with a trust company in order to reduce the bond of executors.</p>

<p>Surrogate’s Court — jurisdiction of—executors and administrators —= claims — mortgages — Code Civ. Pro. § 2510.</p> <p>Where upon the sale in foreclosure under a first mortgage . on decedent’s property, the sum realized was insufficient to pay any part of a second mortgage which decedent about ten years before her death had given upon an exchange of properties, and upon the settlement of the accounts of the executor those interested in the estate and the holder of the second mortgage are the only parties before the court, the surrogate, under section 2510 of the Code of Civil Procedure, has jurisdiction to hear and determine whether the second mortgage is a valid claim against the estate, but 'is without power to determine whether fraud entered into the transaction of the exchange of the properties.</p>

<p>Adoption — when Surrogate’s Court without power to abrogate, without consent — Domestic Relations Law.</p> <p>Where the mother of a three-year old child, the issue of a bigamous union, just before she died, voluntarily gives her written consent to its adoption by strangers, the contract of adoption is valid.</p> <p>A proceeding for adoption under the Domestic Relations Law is not a judicial proceeding and the Surrogate’s Court which confirmed the adoption of said child is without power to abrogate the adoption on the petition of the father of the child, except upon the consent of the foster parents.</p>

<p>Application to take a deposition without the state.</p>

<p>Contracts —breach of —pleading — when motion for judgment on the pleadings granted—Statute of Frauds.</p> <p>Where in an action to recover for breach of a contract for sale and delivery of goods, the answer pleads that the contract</p> <p>was not in writing and that there was no part payment or delivery, and the denials in the reply, which contains no affirmative allegation that there was a writing or part payment or delivery, are insufficient to raise an issue because of the qualification, “ as alleged in * * * the defendant’s answer,” the</p> <p>defendant’s motion for judgment on the pleadings will be granted on the ground that the defense of the Statute of Frauds remains wholly unanswered.</p>

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

<p>Application for an order canceling a subpoena duces tecum.</p>

<p>Certiorari.— when board of tax commissioners of city of New York has no legal power to review the action of a previous board — jurisdiction — assessment and taxation — statutes.</p> <p>Whether a statutory power conferred upon an administrative board is quasi judicial or merely administrative depends upon the proper construction of the statute, and the board may not „ review a determination made by it in the exercise of a quasi judicial power unless the statute so provides.</p> <p>The rule of finality in matters within their jurisdiction applies no less to the determination of special tribunals than to the decisions of courts of general jurisdiction.</p> <p>A board of tax assessors is not a continuing entity regardless of changes in its membership.</p> <p>The action of one of the board of tax commissioners of the city of New York in reducing, after a hearing, an assessment upon the real property of relator for the year 1918, was on the 28th of December, 1917, approved by resolution of said board. On January 1, 1918, the commissioners who had so far acted in the matter went out of office and the new board on January 31, 1918, without notice to the relator, adopted a resolution restoring the original assessment. On certiorari to review the tax for 1918, which was computed upon the assessment therefor, held, that the new board had no legal power to review the action of the previous board; the power to reconsider such action ceased when the members of the previous board went out of office.</p> <p>The assessment under review was also void for the reason that the determination of the new board was not made within thirty days after the due filing, prior to November 15, 1917, of the application for the reduction of the assessment as originally made.</p>

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

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

<p>Claim for improper deposit of spoil on land.</p>

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

<p>Application under section 2689 of Code of Civil Procedure directing the trustee to pay to petitioners a portion of income in the hands of the trustee.</p>

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

<p>Application for an order directing the trustees to pay over a certain fund which is now held by said trustees as part of a sinking fund.</p>

<p>Trustees — duties of — accounting — trusts — remaindermen.</p> <p>Where it is the duty o£ testamentary trustees, independently of any order of the court, to convert the corpus of a trust fund into money and pay it over, the court will not grant an order for the payment to the remainderman of the one-half of the residuary estate held in trust.</p> <p>And, as the trustees may not be liable for any decrease in the appraised value of the property, the court will make no direction that they pay over the amount at which the remainder interest was charged to them in their account.</p>

<p>Summary proceedings — sufficiency of petition — lease — undesirable tenant i—appeal — evidence.</p> <p>The authorities which hold that summary proceedings may not be brought to dispossess a tenant for breach of a condition of the lease do not apply to a summary proceeding brought after the termination of the lease upon the giving of a written notice as provided for therein.</p> <p>A lease not only provided that “ if the landlord shall at any time deem objectionable or improper or undesirable the conduct of the tenant or any occupant of the demised premises, the landlord may at his option terminate this lease by giving the tenant a written notice of five days of an intention to terminate the lease,” but it was also agreed .in and by the lease, that said provision should be interpreted to mean that the character of the tenancy was to be decided entirely by the landlord and that it should not be necessary for the landlord to prove in what way the tenant’s conduct had been objectionable. In a summary proceeding to dispossess the tenant for holding over and continuing in possession of the premises without the permission of the landlord after the expiration of the term, the trial justice, upon holding that said provisions of the lease were conditions and not limitations, dismissed the case upon the pleadings. Held, error.</p> <p>Where the petition alleged that under a notice given September 25, 1919, to terminate the lease which by its terms would end on September 30, 1919, and that the parties entered into a written lease for the term of October 1, 1919, to September 30, 1920, and continued thereunder upon the terms of the original leasing, the petition is sufficient to show that the new lease was merely an extension of the old one, subject to the same terms, and the extended term would expire whenever the tenancy was terminated as provided by the lease,</p> <p>Although the landlord in reliance upon the clause of the lease that “the character of the tenancy is to be decided entirely by the landlord and that it shall not be necessary for the landlord to prove, etc.,” alleged in its petition that the new lease continued under the terms of the original agreement, it appeared as matter of fact that said clause was inserted only in the new lease and was not a part of the terms of the original tenancy. Held, that assuming said clause did not apply to the tenancy existing on September 25, 1919, the landlord was not required to state either in its petition or in the written notice the ground upon which it deemed the tenancy undesirable.</p> <p>Where though the petition alleged that the tenancy had expired because notice had been given to the tenant on September 25, 1919, it was a fair inference from the allegations that the notice was in fact given because the landlord deemed the tenant’s conduct undesirable, the failure of the petition to so allege was not a jurisdictional defect and the dismissal of the proceeding on erroneous grounds cannot be sustained.</p>

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

Appeal by plaintiff from an order granting defendant’s motion to transfer two actions from the fifth district Municipal Court of the city of New York, borough of Manhattan, to the second district court of the same borough.

<p>Lis pendens — when lis pendens will be cancelled by reason of defective verification of complaint — foreclosure — pleading — Code Civ. Pro. § 1670.</p> <p>Whether or not a complaint is verified so as to entitle plaintiff to file a lis pendens under section 1670 of the Code of Civil Procedure depends on whether or not the verification</p> <p>complies with the requirements of an affidavit of verification under the Code o£ Civil Procedure. It is not enough that the plaintiff intended to comply with the same.</p> <p>Following Moran v. Keif, 52 App. Div. 481, and Morris V. Fowler, 99 id. 245, held, that an affidavit of verification, otherwise sufficient, is rendered fatally defective by the addition of an averment which shows that the affiant relies upon hearsay information as to material matters alleged on knowledge. Such additional part of the affidavit cannot be disregarded as surplusage.</p> <p>Keld, that the application to cancel the original lis pendens and the amended lis pendens must be granted, even though the nature of the action is such as to permit a lis pendens to be filed. The court cannot in the exercise of discretion refuse to grant the application.</p>

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

<p>Labor unions — when suspension of a member of a trades union without notice is invalid — associations — equity.</p> <p>A provision of the constitution of a trades union which authorizes the suspension of a member without notice of the charges against him and an opportunity to be heard in his defense is invalid, and a court of equity will restore to membership one so expelled, but without prejudice to the right of the local union to properly try the charges.</p>

<p>Action for marshalling and distributing assets.</p>

<p>Motion to set aside awards made by the commissioners of appraisal in condemnation proceedings.</p>

<p>Proceedings on an appeal from an order assessing a transfer tax.</p>

<p>Habeas corpus proceedings.</p>

<p>Trespass — action for — pleading — damages — injunctions — city of New York — evidence.</p> <p>In an action brought on the equity side of the court the first count of the complaint alleged that by reason of defend- . ant’s threatened trespass, subsequently carried out, to run a subway through plaintiff’s land and under a street in the city of New York, plaintiff incurred additional expense for the foundation of its building, then in course of construction, in order to protect the building from anticipated injuries, which expense would not have been necessary but for the alleged trespass. A money judgment was demanded in the amount of such additional expense. Held, that if a cause of action at all was alleged, it was one at law and not in equity, and that said cause of action should be dismissed as a separate cause of action.</p> <p>The second count of the complaint, repeating all the allegations of the first count, sets forth a good cause of action in equity under the doctrine of the elevated railroad cases. Held, that as the trespass was a continuing one and the remedy at</p> <p>law inadequate, the court in fixing the damages to be awarded in lieu of injunctive relief, might and should take into consideration all expenses necessarily incurred by plaintiff in protecting its adjacent property from injuries reasonably certain to result from the construction and operation of the subway.</p> <p>The plaintiff was entitled to give evidence tending to show that deeper and stronger foundations than the original plans and contract called for, would be necessary to protect its building from injury resulting from the construction and operation of the subway, and the fact that plaintiff did not determine to improve its property and did not begin such improvement until after the laying out of the subway route through the street and in front and adjacent to plaintiff’s premises did not preclude the consideration of the elements of damage above mentioned, and as it cannot be determined without hearing the evidence that plaintiff will not be entitled to substantial damages by reason of defendant’s trespass, a motion to dismiss the complaint as to the second cause of action will be denied and the trial ordered to proceed.</p>

<p>Motion by defendant to set aside the verdict of the jury, and for a new trial.</p>

<p>Foreclosure — mortgages — parties i—who entitled to surplus moneys,</p> <p>Where the owner of the equity of redemption was not made a party to an action to foreclose a first mortgage, the judgment” of foreclosure and sale is without jurisdiction as to it and the</p> <p>purchaser at the sale acquires no title, and although the judgment is a complete adjudication against the holder of a second mortgage who was a party defendant to the action it does not affect her rights as against the interest of the owner of the equity of redemption but her mortgage continues as a lien on the property, and where in a second action to foreclose the first mortgage to 'which, although the owner of the equity of redemption and several of its creditors were made defendants, the second mortgagee was not, she is entitled to share in the surplus moneys prior to the owner of the equity of redemption and its creditors.</p>

<p>Motion to set aside a verdict.</p>

<p>Contracts — execution of.— option for the purchase of real estate — specific performance — title — meaning of word “ defects ” — deeds i— acceptance — pleading.</p> <p>The closing of title, payment of purchase price, and delivery of the deeds of conveyance are acts of performance relating not to the creation but to the execution of the contract.</p> <p>Where though time was made the essence of an option in writing to purchase real estate it was neither expressly nor by necessary implication of the essence of the performance of the contract to convey created by acceptance of the option, the intending purchasers are not precluded from asking specific performance because of their failure to tender the purchase price and demand a deed of conveyance on the last day of the option.</p> <p>Where an option for the purchase of real estate provides that the title shall be free from defects, the word “ defects ” will be construed to mean only such valid and reasonable objections as would affect the marketability of the title.</p> <p>In order to create a contract the minds of the parties must exactly meet in reference to every substantial term of the proposed contract; there must be a clear and unequivocal acceptance of a definite and certain offer without material qualification or variation, and an acceptance incorporating a term, condition or reservation not embraced within the terms of the offer, is equivalent to a rejection.</p> <p>A letter by which, as alleged in the complaint, plaintiffs accepted an option to purchase real estate of defendants, stated: “We are placing our order for the searching of the title and will pass title upon receiving satisfactory report from the Title Company relative to the same,” a qualification not found in the option, and is an ineffectual acceptance thereof and fails to create a contract, and the complaint which prayed a specific performance of the alleged contract will be dismissed upon the merits. ■</p>

<p>• Negligence — contributory — when claim for damages dismissed — highways i— evidence.</p> <p>While claimant with others was proceeding on a "dark night along a highway maintained by the state, in an automobile owned and driven by her husband, the ear ran into an excavation about seven feet distant from the edge of the macadam pavement, which excavation had been left by a state contractor after taking a quantity of gravel from land adjoining the highway. Upon the hearing of a claim for damages to the car and to the clothing of claimant and her husband, evidence was given tending to support a claim that the car was being driven partly upon the macadam and partly upon the earth shoulder, until it arrived at a point directly opposite the excavation, when, due to the softness of the earth shoulder, the effect of the rains and the nearness of the side of the excavation, the soft earth of the shoulder gave way, causing the car to slide off into the excavation. The evidence for the state, corroborated by the driver of the car, tended to show that the</p> <p>car started to leave the macadam at a point about two hundred feet easterly from the excavation and gradually bearing off to the north, until at the easterly end of the excavation it ran directly into it. Held, that as the accident would not have happened had the driver confined himself to that part of the highway prepared and intended for travel, it was caused by his negligence and the claim should be dismissed upon the merits.</p>

<p>Foreclosure — mortgages—default in payment of installment of principal — interest i—when plaintiff entitled to judgment.</p> <p>A mortgage, dated September 10, 1918, which provided for the payment of the principal by installments, contained a covenant that in the event of any default in payment of any of the installments, the entire balance of the principal sum remaining due should immediately become due and payable. In an action to foreclose the mortgage for default in the payment of the first installment of principal it appeared that on March 4, 1919, plaintiff gave notice to defendant that said installment would fall due April 1, 1919, and made a formal demand for its payment when due, in addition to all arrears remaining unpaid. The notice also stated that it was without prejudice to the rights of plaintiff and without waiving a prior demand for interest which plaintiff claimed had not been paid. It further appeared that on April 7, 1919, plaintiff returned to defendant a check received January 2, 1919, as not being for the proper amount of interest due January 1, 1919, and demanded payment of the full amount of the mortgage with interest from its date, claiming that defendant had made default in the payment of the first installment of principal due April 1, 1919. The defendant on April 8, 1919, mailed to plaintiff a check dated April fifth in payment of said installment and asked for a receipt. The next day plaintiff returned the check to defendant, stating it was insufficient to cover the amount due, and on April 19, 1919, defendant, by his attorney, mailed to plaintiff two cheeks, one in payment of the installment of principal due April 1, 1919, and one for the amount of interest due and owing January 1, 1919, and while plaintiff retained the interest check she returned the installment cheek. Held, that plaintiff was entitled to judgment.</p>

<p>Action to enforce a lien.</p>

<p>Taxes — foreclosure of liens for — defenses of exemption from taxation, and adverse possession — unpaid water rents —■ Greater New York Charter, § 1047 — dismissal of complaint on merits.</p>

<p>Lien — foreclosure — rescission of contract — lien discharged of record — action to recover on quantum meruit — judgment for defendant on counterclaim.</p>

<p>Motion to continue injunction and motion for judgment on the pleadings.</p>

Proceedings upon the judicial settlement of the accounts of an executor. Report of referee determining the domicile of the testator and the law to be applied in construing the will.