Volume 11 — Bedell

<p>Bills, Notes and Checks — When Maker op Note, Signed by him as “ Trustee,” Is not Personally Liable —Negotiable Instruments Law (L. 1897, Oh. - 612, § 39) — Question op Fact. A trustee of an insolvent firm, for the benefit of creditors thereof, appointed by such firm and its creditors, is not personally liable under the provisions of the Negotiable Instruments Law (L. 1897, ch. 612, § 39), upon a note signed hy him as “trustee,” but without disclosing his representative character upon the face of the note, where the payee is one of such creditors and the consideration for which the note was given was property purchased from the. payee for the benefit of the trust estate; but where in an action upon the note, brought by the payee, against the maker, the evidence is conflicting as to whether the property, for which the note was given, was purchased for the benefit of the trust estate and whether the plaintiff agreed to accept the note of defendant in his representative capacity, the direction of a verdict in favor of the defendant is reversible error.</p>

<p>1. Marine Insurance — Constructive Total Loss. Under a policy of marine insurance, providing, first, “ The said loss or damage to be estimated according to the true and actual cash value of the said property at the place of destination on the day of the disaster; * * “ but fruit and vegetables, and other articles perishable in their own nature, are free of particular average,” and, seco ml, " It is understood that there can be no abandonment of the subject insured; nor shall the acts of the insurers or their agents in recovering, saving or disposing of the property hereby insured, be considered a waiver or an acceptance of abandonment, nor as affirming or denying any liability under this policy; but such acts shall be considered as done for the benefit of all concerned, without prejudice to the rights of either party,” where the property insured, consisting of a cargo of fruit and vegetables, was shipped in a canal boat which was sunk and part of the cargo was recovered in a damaged condition, shipped to the insured and sold by him, the amount realized being but slightly in excess of the handling and selling charges and was less than the sum expended by the insurer in raising and shipping the cargo, not including therein the expenses of the sale, the latter is liable for a constructive loss on the whole of the articles insured.</p> <p>2. When Abandonment not Necessary to Constitute a Constructive Loss. The fact that the policy provides that “ there can bé no abandonment of the subject insured ” does not prevent a constructive total loss, since that provision is found in connection with the further provision, “nor shall the acts of the insurers or their agents in recovering, saving or disposing of the property hereby insured be considered a waiver or an acceptance of abandonment," the effect of which is to prevent the action of the insurer in taking possession of the property and interfering to save it from being held as the acceptance of an abandonment.</p>

<p>Contract — Work Done Thereunder to Be Paid por “After Certificate of Approval Should Have Been Issued by the New York Board of Pire Underwriters " — Recovery May Be Had When Issuance of Certificate Prevented by Default of Owner. Where it appeared, in an action brought to recover the price agreed to he paid for work done under a contract, that the plaintiff agreed to equip a factory with a system of automatic fire sprinklers, in accordance with the rules and regulations of the New York board of fire underwriters, and do all the work and furnish all the material for such system for a certain price payable “after a certificate of approval should have been issued” by such board of underwriters—that the contract was silent as to the form or substance of the certificate—that payment had been, refused by defendant and the action defended upon the ground that the contract called for a certificate that would enable the defendant to secure reduced rates of insurance and that such certificate had not been furnished — that the hoard did make a statement certifying in effect that the plaintiff had fully complied with the contract, but refused to grant the desired certificate for the reason that the water supply of the factory was insufficient, the supply pump defective and the building beyond the reach of a fully organized paid fire department •— and there was evidence tending to show that the situation was such as to render it impossible for the plaintiff to secure the certificate under the rules of the hoard until such objections had been removed — that defendant and his tenants were able to obtain, and were in fact offered, such reduced rates of insurance as were contemplated by the provisions of the contract with respect to the procurement of the certificate before payment, and this, too, by reason of jffaintiff’s work in introducing the sprinkler system into the factory, held, that it was reversible error to direct a verdict for defendant, since the jury might have found that it was defendant's default that prevented the issuance of the certificate, and also that, by reason of plaintiff’s work, defendant was offered and could have enjoyed every advantage without the formal certificate that he could obtain or enjoy with it, and under such findings the defendant would have no reasonable ground for refusing to pay the contract price of the work and would, in equity, be bound ’ to pay it.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint states facts sufficient to constitute a cause of action. (Clews v. Bank of N. Y., 105 N. Y. 398; Ketchum v. Van Dusen, 11 App. Div. 334; Sanders v. Soutter, 126 N. Y. 193; Herberts.

Hidley, entered upon a decision of the court at a Trial Term without a jury. On May 8, 1868, Henry Weatherwax died leaving a last will and testament wherein, amongst other things, he provided for certain care and income and privileges to be furnished to his widow by his son, Charles Weatherwax, or the occupant of his farm after his decease, out of the profits of said farm, and also setting apart to his widow a part of his dwelling house.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff’s and appellant’s misfortune in having the policy stolen from him through no fault of his own constitutes, in view of the fact that he has made diligent effort to recover it, a good and sufficient excuse for the failure to surrender the said policy within six months after default in payment of the premium. (Wheeler v. C. L. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. The rule applied by the Appellate Division' that money paid under a mistake of law is “ beyond the power of recall,” is not applicable to the facts of this case. (2 Pom. Eq. Juris. § 842; Tiedeman’s Eq.

(173 N. Y.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered January 2, 1902, which affirmed a judgment of the Court of Special Sessions of the city of Hew York convicting the defendant of a misdemeanor. The facts, SO' far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. The “ city of New York,” as defined in the charter, does not include the E^st river. (L. 1897, ch. 378, § 1.) The Court of Special Sessions had no jurisdiction over the alleged offense. (L. 1897, ch. 378, § 1406.) The provision of the charter of the city of New York in question was intended to apply only to boilers on land.

The main facts upon this appeal are substantially the same as they appeared upon the former apjoeal and as stated in 162 N. Y. 122.

The nature of the action and the facts, so far as material, are stated in the opinion. The rule that an outstanding claim of title in a cotenant can be tried in partition is broad enough to cover the case of an outstanding adverse claim of title in a stranger. (Weston v. Stoddard, 137 N. Y. 119; Code Civ. Pro. §§ 1542, 1543; Drake v. Drake, 61 App. Div. 1.) No distinction should be made between an adverse claim of title made by a cotenant and such a claim made by a stranger.

<p>1. Constitutional Law—Reorganization op the Police Department in the City op New York—L. 1901, Oh. 33, not Violative op § 16, Art. 3, op State Constitution Relating to Local Bills. Chapter 33 of the Laws of 1901, abolishing the hoard of police commissioners and the office of chief of police of the city of New York, and imposing the duties of those offices upon a single commissioner, is not in. conflict with section 16 of article 3 of the Constitution, as embracing more than one subject which is not expressed in its title, since the act embraces but one subject, viz., the reorganization of the police force of the city, and that is not only sufficiently but is elaborately expressed in the title.</p> <p>2. Not Violative op the Federal Constitution as Impairing the Obligation op Contracts. The act is not violative of the Federal Constitution as impairing the obligation of a contract, in that it deprives the incumbent of the office of chief of police of his right to the pension tc which he would have been entitled had he been permitted to serve as such officer for the requisite time, and which would have been paid out of a fund, a part of which was derived from deductions from his salary. (L. 1897, ch. 378, §§ 351-357.) 1. Because assuming, but not deciding, that the statutory provision for pensions constituted a contract with him, the legislature has the right to abolish the office, and as the act does not purport to abrogate his right to a pension, if he has any vested rights beyond the power of legislative interference, he may assert them in a proper proceeding. 2. Assuming, but not deciding, that the pension scheme was such that the legislature could not abolish the office without violating such contract, then the original legislation establishing the scheme was void, so far as it led to any such result, since one legislature cannot bind the hands or limit the powers of subsequent legislatures in matters that are strictly governmental, and whát it cannot do directly it cannot do indirectly by authorizing the municipality to enter into any contract with an incumbent of the office which would have that effect.</p>

<p>1. Murder—First Degree—Evidence.</p> <p>Under an indictment for murder in the first degree the prosecution may prove facts to bring the case within any of the provisions defining the crime.</p> <p>2. Same—Design to Effect Death, Question for 'Jury—Penal Code, Sec. 183.</p> <p>Where upon the trial of an indictment charging murder in the first degree only, the case is submitted to the jury in two aspects; that the deceased was killed with a deliberate and premeditated design to effect his death, and that he was killed by the defendant while the latter was engaged in the perpetration of a felony, or an. attempt to commit one, they are not so inconsistent as to render it improper to submit both to the jury for determination, since proof either that the defendant killed the deceased with a deliberate and premeditated design to effect his death, or while the defendant was engaged in the commission of a felony, or an attempt to commit a felony, though “without any design to effect death,” which phrase does not constitute an absence of intent an essential ingredient of the murder, establishes the crime charged, and the only issue to be decided by the jury is whether the defendant is guilty of that crime as it is defined by the statute (Penal Code, sec. 183).</p> <p>3. Same—Witnesses—Jury May Believe Part and Reject Part of Testimony.</p> <p>The jury may find that defendant who, while on his way to commit a burglary, exchanged shots with and killed a police office, fired first, although an associate who turned State evidence testified that defendant told him to the contrary, since the jury could accept part and reject part, i. believe that the defendant shot at the policeman and disbelieve his statement that the policeman fired first.</p> <p>4. Same—Premeditation—Deliberation.</p> <p>One who plans the commission of a burglary and arms himself, with the intent to shoot any one who opposes his design, is chargeable with such deliberation and premeditation as renders him guilty of murder in the first degree, where, while attempting to commit the burglary, he encounters and shoots a police officer.</p> <p>5. Same—Overt Act—Burglary.</p> <p>Persons who provide themselves with suitable tools and go to a building with the intention of breaking into it, but whose design is frustrated while they are reconnoitering or inspecting the premises, commit such an overt act as constitutes an attempt to commit burglary.</p> <p>O’Brien, J., dissenting.</p>

The plaintiff seeks in this action the construction and specific performance of a contract, the material portions of which read as follows: “This agreement, made this 29tli day of August, in the year one thousand eight hundred and ninety-nine, between The Santa Clara-Lumber Company, a domestic corporation duly incorporated and organized under the laws of this State, of the first part, and the St. Regis' Paper Company, also a domestic corporation duly incorporated and…

<p>Decedent’s Estate — When Title to a Portion of Property Tests Absolutely in Widow—Code Civ. Pro. § 2713—No Obligation to Reduce it to Possession Through Administration in Surrogate’s Court. • The property of an intestate leaving no minor children, to the extent and of the character specified and enumerated in section 2713 of the Code of Civil Procedure, vests absolutely in the widow, and the right of possession follows the legal title; if the adminministrator fails to surrender her property she is not obliged to bring him to account in a Surrogate’s Court, and, when he has refused upon demand to make an inventory as required by the statute and has appropriated to his own use the property and money belonging to her, she may maintain an action of conversion against him.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The appeal involves only questions of law. (Otten v. M. Ry. Co., 150 N. Y. 395; Hirshfield v. Fitzgerald, 157 N. Y. 166; Griggs v. Day, 158 N. Y. 1.) The cause is one of equitable cognizance.

<p>1. Public Officers — When Statutes Imposing Duties Upon, Are Rot Required to Be Literally Performed in Unessential Particulars. Where a statute or ordinance requires the performance by public officers of a certain specified act, or that it shall be performed in a certain specified manner, they must at least substantially comply with these requirements to render their acts valid. But such a statute or ordinance is not required to he literally performed in unessential particulars, where there has been a substantial compliance which answers the purpose or intent of the statutory requirements.</p> <p>2. State Printing - Law—When Form of Guaranty Attached to Proposal for Contract for Legislative Printing Sufficiently Complies Therewith—Unimportant Variance in Bid — Legislative Construction. A contract made for legislative printing in strict accordance with the State Printing Law (L. 1901, ch. 507), in which the only defect claimed is that the proposal of the lowest biddér, to whom the contract was awarded, did not have a guaranty indorsed thereon in the precise language of section 5, requiring “a satisfactory guaranty for the proper performance of the contract,” although the guaranty was in the form required by the State Printing Board as prescribed by section 10, relating to department printing, but requiring precisely the same guaranty as section 5, and was to the eSect that if the bidder’s proposal was accepted it would enter into a contract in compliance with it and give the necessary security, is valid, the guaranty being a sufficient, although not a literal, compliance with the requirements of the statute ; since such defect must be regarded as an unimportant variance in the proposal, especially where the legislature, having in section 10 set forth a form which it regarded as a sufficient compliance with the provisions of the required guaranty, must be regarded as having construed the meaning of the words used in section 5.</p> <p>3. Intent of Statute. The purpose of the statute was not that the performance of the final contract should be guaranteed before it was made, but that the contract or agreement involved in the proposals should be performed by entering into the final contract and giving the necessary security, thus preventing “ straw ” bids. Nor is a double guaranty of the performance of the final agreement required; when the second guaranty is given it supersedes the first, and such is the intent and purpose of the statute.</p>

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered September 27, 1901, modifying, and affirming as modified, a judgment in favor of plaintiffs entered upon a decision of the court at a Trial Term without .a jury.

Tho nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff is not entitled to the injunction granted by the judgment restraining the delivery of provisions for household use to residents of Thousand Island Park upon mail order. (Story v. N. Y. El.

The nature of the action and the facts, so far as material, are stated in the opinion. The bonds sued on in this action are negotiable instruments according to the law merchant. (Illinois v. Delafield, 8 Paige, 527; Bank of Rome v. Vil. of Rome, 19 N. Y. 20; Brainerd v. N. Y. & H. R. R. Co., 25 N. Y. 496; C. Nat. Bank v. Faurot, 149 N. Y. 532 ; Story on Prom. Notes, § 44; Daniel on Neg.

This is a taxpayer’s action brought to restrain the trustees of the village of Bosendale from issuing bonds to purchase the water works plant in that village in pursuance of a contract between the village and the water company for a supply of water, which reserved an option to the village to purchase the water works at any time within five years for the sum of $40,000.

<p>Highways — Order Appointing Commissiomírs under Section 84, Highway Law. Where a notice and petition in proceedings instituted under the Highway Law (L. 1890, eh. 568, § 84) to lay out a highway, states all of the facts required by the statute, the County Court has jurisdiction to make an order appointing commissioners, the effect of which is an adjudication that the persons appointed are eligible; the fact that" it does not affirmatively appear in the order that such commissioners were “disinterested freeholders,” residents of the town, but not of the county, which the statute requires them to be, is not a defect upon the'face of the proceedings affecting the jurisdiction of the court.</p>

<p>1. Action for. a Separation. Where it appears, in an action for separation and alimony brought by a wife against her husband, that prior to a ceremonial marriage between plaintiff and defendant in 1871 plaintiff had married another, with whom she lived about two years, when he disappeared; that long before her marriage to defendant she was unable to learn anything of her first husband’s whereabouts by diligent inquiry; that she had believed him to be dead ior a period of more than five years prior to her marriage to defendant; that lie did die in 1878, which fact was communicated to plaintiff and defendant shortly thereafter; and that, with knowledge thereof, they continued to lire together as man and wife, holding themselves out as such to the world for a period of about eleven ■years and until the year 1889 — these facts, together with a finding that defendant had abandoned plaintiff and refused and neglected to support her, furnish sufficient support for a judgment of separation and for an allowance of alimony.</p> <p>3. Counterclaim that Plaintiff Had Husband Living. Where the answer contains a counterclaim that the plaintiff had a husband living at the time of her marriage with defendant, but under the reply she is entitled to offer proof of a later contract of marriage than the ceremonial marriage, a motion for j udgment annulling the latter marriage, at the beginning of the trial, is properly denied.</p> <p>3. When Voidable Marriage Not a Ground for Dismissal of the Complaint. Where defendant moved, after the plaintiff had rested, to dismiss the complaint upon the ground that plaintiff’s first husband was alive at the time of her marriage to defendant, and the only evidence thereof was in plaintiff’s reply, which, taken as a whole, brought the marriage to defendant within the statutory definition of “ voidable marriages” (L. 1896, cli. 373, § 4), the motion is properly denied.</p>

The nature of the action, and the facts, so far as material, are stated in the opinion. Defendant became the owner of the land sold under the judgment in partition and entitled to the crops growing thereon at the time of the sale. (Lane v. King, 8 Wend. 584; Gardner v. Finley, 19 Barb. 317; Shepard v. Philbrick, 2 Den. 174; Austin v. Sawyer, 9 Cow. 40; Wintermute v. Light, 46 Barb. 278; Aldrich v. Reynolds, 1 Barb.

The nature of' the .action and the facts, so far as material, are stated in the opinion. Under the agreement between the parties the Iroquois Brewing Company was obliged to collect two dollars a barrel, in addition to the regular price, on all béer sold by it to Mallon, and plaintiff cannot be prejudiced by the failure of the brewing company so to collect said excess.

'Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 22, 1902, affhming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. The complaint should have been dismissed on the ground that the plaintiff failed to show absence of contributory negligence on the part of deceased.

The nature of the action and the facts, so far as material, are stated in the opinion. The decree of the Special Term, though not technically so, was really final. (Breed v. Ruoff, 66 N. Y. Supp. 427; Mills v. Hoag, 7 Paige, 18; Pullman v. Christain, 6 Hun, 209; Craighead v. Wilson, 18 Hun, 202; Thomson v. Dean, 7 Wall. 342; Winthrop v. Meeker, 109 U. S. 180; McGourkey v. T. & O. R. R. Co., 146 U. S. 548.) If the decree is not final it is unwarranted in the law and void.

improvement of Flatbush avenue in the borough of Brooklyn. The facts, so far as material, are stated in the opinion. The board of assessors of the city of Hew York had no power to confirm this assessment.

The nature of the action and the facts, so far as material, are stated in the opinion. The learned trial justice correctly construed the words “ legal representatives ” as they are found in the policy under review, by giving to those words their ordinary signification.

<p>1. Appeal — Nonsuit. The dismissal of the complaint after the plaintiff had rested in an action to compel an accounting for profits alleged to have been made by the defendants in speculating in the stock of a corporation, part of which profits by certain agreements were alleged to belong to the plaintiff, “ upon the ground that each of the agreements set forth in the complaint was and is contrary to public policy and void, and that the plaintiff, therefore, has no cause of action against the defendants upon either of said agreements,” is a nonsuit, and the plaintiff is entitled to have it reviewed in the light of the facts and inferences most favorable to him.</p> <p>2. Contract — Agreement for Procurement of Legislative Action for tiie Purpose of Depreciating Price of Corporate Securities Void as Against Public Policy. A contract which contemplates the procuring of legislative action for the sole purpose of depreciating the market value of the securities of a corporation and provides that any profit, arising from speculating in such securities by selling them short and covering at the anticipated decline, is to be divided between the parties, is void as against public policy and will not be enforced by the courts.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in holding admissible the board of health record of the cause of Esther Horan’s death. (Code Civ. Pro. § 834; Davis v. Supreme Lodge, 165 N. Y. 159; Pease Co. v. Kesler, 21 App. Div. 631; Lawlor v. French, 14 Misc. Rep. 497; Weber v. Railway, 12 App. Div. 512; Robinson v. Sup. Com., 38 Misc.

<p>1. Indictment—Dismissal of—Code Grim. Proc., Sec. 313, not Exclusive.</p> <p>Section 313, Code Criminal Procedure, relating to the grounds upon which an indictment must be set aside on motion, so far as it is intended to regulate only matters of procedure which involve no constitutional rights, is valid and must be obeyed by the courts; but to the extent that it may destroy, curtail, affect or ignore the constitutional rights of a defendant it has no force and is void. A motion to dismiss an indictment against him may be entertained on other grounds, therefore, than those specified in the section.</p> <p>2. Appeal—Charge to Grand Jury not to be Considered unless Properly Authenticated.</p> <p>Where the only authentication of a charge to the grand jury, on the record, is the affidavit of a newspaper reporter that he made and published a copy of a paper given him by the court stenographer purporting to be a transcript of the charge, an alleged error therein will not be considered by the Court of Appeals.</p> <p>3. Indictment—Presumption That it . is Based Upon Legal and Sufficient Evidence.</p> <p>It seems, that a charge to the grand jury that “ if what is charged in these affidavits shall be proven before your body, then it will be your duty to find a bill of indictment for this misdemeanor against the persons who are guilty of it,” assuming it to be erroneous, does not bind the grand jury, and it cannot be presumed that it was influenced thereby, unless it deliberately ignored its duty under the statute to find an indictment only upon legal evidence, which unexplained or contradicted would warrant a conviction. Such charge, however, is strictly correct, since “ proven before your body ” means proven by legal evidence and by the amount or weight of evidence that would support an indictment in any case.</p> <p>4. Grand Jury—Heading of Affidavits to.</p> <p>The fact that afiidavits were read to the grand jury by the judge alleged to have charged it, which tended to show the commission of the crime for which the defendant was subsequently indicted, is not sufficient to overcome the presumption that the indictment was based upon legal and sufficient evidence, nor is the fact that the record contains no indorsement of the names of witness upon the indictment as required by section 271 Code Criminal Procedure; the grand jury is presumed to have done its duty and to have found the indict-men wholly upon sufficient and legal evidence received within the grand jury room.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Mary King took a vested remainder under the will of Jerome B. King, deceased.

<p>Appeal from a judgment of the Appellate Division of-the Supreme Court in the first judicial department, entered July 15, 1902, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The contract, having been made for the benefit of no designated beneficiary, but inuring, by its terms, upon the death of a member, entitled to the death benefit, to “ his heirs,” the designation of a beneficiary is not a condition precedent to the plaintiff’s right of recovery herein. (Bishop v. Grand Lodge, 112 N. Y. 627; Wokal v. Belsky, 53 App. Div. 167; Elmer v. M. B. Ins. Co., 64 Hun, 639.) There is nothing contained in the defendant’s constitution and by-laws which imposed upon the plaintiff’s intestate the duty of specifically designating a beneficiary-as a condition precedent to her right to recover in this action, and the trial court erred in dismissing the complaint upon this ground. (Kent v. Q. M. Co., 78 N. Y. 159; Parish v. N. Y. P. Exch., 169 N. Y. 34; Weiler v. E. A. Union, 92 Hun, 277; Roberts v. Cohen, 60 App. Div. 259; F. L. & T. Co. v. Aberle, 19 App. Div. 79; Moan v. Normile, 37 App. Div. 614; Ireland v. Ireland, 42 Hun, 212; Wokal v. Belsky, 53 App. Div. 167; Walsh v. M. I. Ins. Co., 133 N. Y. 408; Bishop v. Grand lodge, 112 N. Y. 627.)</p> <p>The deceased was not entitled to a death benefit, having failed to comply with the provision requiring him to execute or obtain a certificate designating a beneficiary. (Hellenberg v. I. O. B. B., 94 N. Y. 580; Eastman v. P. M. R. Assn., 62 N. H. 555; K. M. M. Ins. Co. v. Miller, 13 Bush, 494; Worley v. N. W. M. A. Assn., 3 McCrary, 53; Maguire v. Maguire, 59 App. Div. 143; Markey v. Supreme Council, 70 App. Div. 4; Kunkel v. W. S. & B. B. Fund, 68 App. Div. 385; Fink v. Fink, 171 N. Y. 616.) If any one has a cause of action for the collection of this fund it is not this plaintiff (Opitz’s administratrix) but his next of kin. (Worley v. N. M. A. Assn., 10 Fed. Rep. 227.)</p>

The facts, so far as material, are stated in the opinion. The testator’s intentions for the disposition of his estate appear by the will and should be carried out if possible.

The nature of the action and the facts, so far as material, are stated in the opinion. Held: therefore, liable, notwithstanding the conductor’s knowledge of the situation. (Buckley v. G. P. & R. Mfg. Co., 113 N. Y. 540; Marsh v. Chickering, 101 N. Y. 396; Crown v. Orr, 140 N. Y. 450; Spencer v. Worthington, 44 App. Div. 496; Miller v. Grieme, 53 App. Div. 276; Savage v. N. E. R. R. Co., 42 App.

The nature of the action and the facts, so-far as material, are stated in the opinion. There was no unqualified covenant to repair. (Graves v. Deterling, 120 N. Y. 447.) The repair clauses are to bo construed as covenants in the nature of a warranty, and not as conditions precedent. [MacK. F. S. Co. v. Mayor, 160 N. Y. 72; Gilliam v. Brown, 116 Cal. 454.) The general covenant to repair was limited by the subsequent special covenant.

The nature of the action and the facts, so far as material, are stated in the opinion. William C. Earle was a necessary party to the action brought by his sister Cornelia. (Perry on Trusts, § 881; Hanne v. Stephens, 1 Vern. 110; Mitchell v. Lennox, 2 Paige, 280; Petrie v. Petrie, 7 Lans. 90; Peyser v. Wendt, 87 N. Y. 326; Sortore v. Scott, 6 Lans. 275; Sherman v. Burnham, 6 Barb. 403; Matter of Robinson, 37 N. Y. 264; Conklin v. Davis, 53 How.

It is alleged in the complaint, in substance, that on the 5tli of January, 1900, the plaintiff, an attorney and counselor at law, was retained by the defendant Louis Olsen to commence and prosecute an action against the Brooklyn Heights Bailroad Company to recover $50,000 damages for personal injuries received by said Olsen through the negligence of said company whereby he lost his right leg.

<p>1. Murder—Defense of Justifiable Homicide—Tbial—Chabge to Juby.</p> <p>,.Upon the trial .of a charge of murder the court charged: “Tp.. establish the defense of justifiable homicide it is the duty of one > engaged in a quarrel to avoid an attack and not become the aggressor unless other means are unavailable, and if you find that the defendant in this case having, on the afternoon of the 22d of October, - been engaged in a quarrel with the deceased, and desiring to continue that quarrel descended from the house of Bernardino Marotta to the street, and knew that the deceased was on the street, and with the intention of continuing that quarrel and for the purpose of making his quarrel effective took with him a dangerous weapon, and if under those circumstances the defendant sought out the deceased in the public street and entered upon the quarrel which had been interrupted, even though the deceased, under such circumstances, merely drew a revolver, the defendant may be regarded as the assailant and the wrongdoer, and his action in stabbing the deceased is not justifiable homicide. Held, no error. (Vann, J., dissenting, on the ground that the “ dangerous weapon ” was but a pen-knife.)</p> <p>2. Same.</p> <p>The strict rule as stated in England that “ no man shall justify the killing of another by pretense of necessity unless he were himself without fault in bringing that necessity upon himself ” has not been accepted in the later cases in this country.</p> <p>3. Same—-Self-Defense.</p> <p>If one takes life, though in defense of his own life, in a quarrel which he himself has commenced with the intent to take life or inflict grievous bodily harm, the jeopardy in which he has been placed by the act of his antagonist constitutes no defense whatever, but he is guilty of murder. But if he commenced the quarrel with no intent to take life or inflict grievous bodily harm, then he is not acquitted of all responsibility for the affray which arose from his act, but his offense is reduced from murder to manslaughter.</p>

<p>Negligence—When Street Railway Company Not Liable for Death of Person Kicked or Thrown from Car by Motorman and Struck by Another Car While Crossing the Tracks. Where a bright hoy about fourteen years of age, with no physical defect that affected his strength or activity, who was riding upon the front platform of an electric car, was thrown or kicked from the car by the motorman, and, picking himself up slowly, walked lamely back a short distance and proceeded to cross over the tracks and while in the act of crossing the second or further track was struck by a car running at a high rate of speed and received such injuries that he subsequently died therefrom, the railway company is not liable for his death, where it appears that the place where he was injured was well lighted by electric lights and that the car, itself, well lighted up, was about 125 feet distant "at the time he attempted to cross the tracks, and there was no evidence proving, or tending to prove, that he either looked or listened for the approach of a car before crossing the second track, or evidence that would justify the inference that he was so injured by being thrown from the car on which he had-been riding that he was unable to use his powers of sight and hearing or to judge of the peril of the situation.</p>

The facts, so far as material, are stated in the opinion. It was not the duty of the commissioner on discovering that the Grand street bridgetenders were no longer required to create vacancies for so many of them as happened to be veteran firemen by discharging men who were employed at other bridges.

The nature of the action and the facts, so far as material, are stated in the opinion. This case is not controlled by the case of Fries v. N. Y. & Harlem, R. R. Co. (169 N. Y. 270), which was decided upon the particular findings made in that case by the court below. In the case at bar there are fundamental distinctions between the two cases.

. The nature of the action and the .facts, so far as material, are stated in the opinion. The complaint should have been dismissed on the ground that no negligence was shown on the part of the defendant. (Lehr v. S. & H. P. R. R. Co., 118 N. Y. 556; Graham v. M. Ry.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 20, 1902, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the defendant to certify on the payroll of the police department of the city of New York that defendant is entitled to the salary of chief of police for the months of February to August, 1901, inclusive.</p>

<p>Appeal from an order of the'Appellate Division of the Supreme Court in the fourth judicial department, entered March 20, 1901, reversing a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term and granting a new trial.</p>

<p>Motion for reargument. (See 173 N. Y. 356.)</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 7, 1901, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p>