Volume 110 — New York Miscellaneous Reports

<p>Action to establish title to real property.</p>

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

<p>Action to recover personal property.</p>

<p>Pleading — damages — when complaint cannot be amended after verdict.</p> <p>After the verdict in a vendee’s action to recover for breach of contract, the court has no power to allow an amendment to the complaint by increasing the claim for damages to the amount of the verdict.</p>

<p>Public Health Law, § 316 — construction of — statutes ■— delivery of corpse to medical institutions.</p> <p>Pleading — allegations in complaintwhen demurrer sustained.</p> <p>While section 316 of the Public Health Law (Laws of 1909, chap. 49, as amended) not only permits but in certain eases requires morgues and other institutions and persons named, to deliver any corpse in their possession not placed there by relatives or friends for keeping or burial, to medical institutions, the words of the statute which prohibits the delivery or receipt of the corpse of any person “ known to have relatives, or friends without the assent of such relatives or friends ” necessarily mean, known to the institution charged with wrongfully receiving a corpse or, what is tantamount to knowledge, lack of reasonable inquiry.</p> <p>Where though the complaint in an action brought for injury to plaintiffs’ feelings due to the act of defendant, through its medical department, in dissecting the body of their father who died in a public hospital from which defendant received the corpse, alleged that plaintiffs “had left their address in order that they might learn if anything had happened to their father, or of his death ” it did not state with whom the address was left or when it was left. Upon sustaining a demurrer with leave to serve an amended complaint, held, that though it could be inferred that the address was left with the hospital it could not be inferred that it was left with defendant or brought to its attention, and that there was no plausible ground for argument that knowledge on defendant’s part was alleged.</p>

<p>Covenants — restrictive — when will be enforced'—contracts — what creates an equitable easement — mortgages — consideration — foreclosure.— parties — injunctions — a gpeal.</p> <p>A restrictive covenant made by a prior oxwier, if clearly established, will be enforced against subsequent grantees with notice, even though there be no privity of estate.</p> <p>An agreement between adjoining land owners reciting a valuable consideration and duly recorded, which specifically provides that the land of the party of the first part shall not be used for certain purposes, creates an equitable easement on said lands and follows it into the hands of subsequent owners who take with notice of the covenant, either actual or constructive.</p> <p>An agreement reciting a valuable consideration and duly recorded made between the owner of land contiguous to and adjoining certain mortgaged premises of a corporation specifically provided that the land of the party of the first part should not be used for certain purposes. Upon an assignment of said mortgage to the nominee of the plaintiffs herein, made just about the time when application for judgment in an action to foreclose the mortgage could be made, the nominee was substituted as plaintiff in the action and an order was entered strildng out the names of the plaintiffs herein as defendants in the foreclosure action. The judgment of foreclosure and sale directed that the property be sold subject to the terms and restrictions of the agreement above mentioned, and the terms of sale so provided, and the court upon motion refused to modify the judgment. After the foreclosure, by mesne conveyances, the defendant became the owner of promises formerly owned by the mortgagor, but neither in the deed to it nor in the deed to its grantor was there any reference to the agreement containing the restrictive covenant although defendant’s officers at all times had both actual and constructive notice of said covenant. Held, that defendant’s estate in the property was subject to the servitude imposed by the aforesaid agreement, and that though there was no privity of estate between any of the parties, to said agreement, the plaintiffs in an action to restrain defendant from violating the restrictive covenant, will be granted an injunction pendente lite.</p> <p>In view, however, of the serious consequences to the defendant of an injunction, the operation thereof will be suspended pending an appeal promptly taken and speedily brought on for a hearing.</p>

<p>Action for divorce.</p>

<p>Foreclosure — mortgages — when assignee of part interest may not foreclose — when motion for judgment on the pleadings denied.</p> <p>The assignee of an interest in a bond and mortgage may not alone elect to declare them immediately due, for default in payments agreed to be made.</p> <p>In such ease, the assignee and his assignor are in equity joint owners of the bond and mortgage, and where the assignor upon his refusal to bring a foreclosure action is made a party defendant in such an action brought by his assignee, a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action will be sustained, and plaintiff’s motion for judgment on the pleadings will be denied.</p>

<p>Mandamus — when application for a peremptory writ of, denied — when women citizens may not sit as trial jurors.</p> <p>Though by the recent amendment to the State Constitution women citizens are qualified to vote, they may not sit as trial jurors until the legislature so enacts.</p> <p>An application for a peremptory writ of mandamus to compel the officials having the matter in charge to include the names of women in jury lists, denied.</p>

<p>Partition — wills.— trusts — imperative power of sale — equitable conversion — real property — easements.</p> <p>A power of sale of testator’s real estate, whether imperative or required by the general scheme of the will, effects a conversion of the realty into personalty.</p> <p>■ A testator whose will evidenced an intention to bestow all his property on his wife and son, gave his bottling works business, the real estate, equipment and all of the assets of the business, and the capital invested therein, etc., to them in trust to carry on the business during the life of the widow and for such period of time as they might deem advisable, the net income to be equally divided between them. It was provided that should the son and widow desire to close out the business one-half of the proceeds of a sale thereof under a power of sale conferred upon them by the will should go to the son and the other half to be held in trust and the net income paid to the widow during her life with the privilege to her of using any part of the principal necessary for her maintenance and support and so much of the proceeds of sale as remained at her death was given to the son. In the event of the leasing of the bottling works plant and the real estate connected therewith the net income was to be equally divided between them during the life of the widow and in the event of her death before the business, real estate and all connected therewith should be sold or disposed of, the same should go to the son, to whom was given all the rest and remainder of testator’s estate including the bottling works plant, subject to the uses and purposes thereof, and the imperative power of sale vested in the son and widow, during the life of the latter. The will made no provision for collateral relatives and not contemplating that the son might die before his mother no provision was made against such happening. About twenty days after the discontinuance of the business and within two years after the death of the testator the son died intestate and unmarried, survived by his grandmother and an aunt on his mother’s side and by an uncle and aunt and first and second cousins on his father’s side. His mother had predeceased him and his father had married his first wife’s sister, who had survived him. In an action for partition of all the real estate of which the son died seized, brought by the uncle, the only dispute was as to the real estate connected with the bottling works. Held, that the power of sale in the widow and son was imperative and that said real estate could not be sold in the present action, neither the plaintiff nor any of the collateral relatives of the son on his father’s side having any interest in said property.</p> <p>The provision in regard to the leasing of the entire bottling works plant and its real estate, while consistent with the thought that the son and widow might lease the business as a going concern, was inconsistent with the direction to sell as soon as the business was discontinued.</p> <p>The first trust attempted to be created for the sole purpose of carrying on the bottling works business expired when the business waa discontinued and was void because the same persons were both trustees and beneficiaries, and the case was therefore to be considered as if such trust had never been attempted.</p> <p>The second trust which was to be one-half of the proceeds of the sale of the bottling works property would come into existence only after the power of sale, which was not a part of either trust, had been exercised; the real estate itself would not be a part of the corpus of said trust.</p> <p>Two of the parcels of land described in the complaint, having been devised absolutely to the testator’s son, plaintiff was entitled to judgment accordingly.</p> <p>That the transfer tax has not been paid does.not require the dismissal of an action for the partition of real estate.</p> <p>The owner of an easement is not a necessary party to an action for partition, unless it is intended to attack the validity of the easement.</p>

<p>Interest — when state not liable for interest upon fund in custody of the state treasurer — when state is not responsible for the wrongful acts of its officers — statutes — claim dismissed.</p> <p>A fund arising in a condemnation proceeding was, pursuant to an order of the court, deposited with the county treasurer to be invested with direction that the interest be paid to the wife of claimant, the principal to be held subject to the further order of the court. Nearly thirty years thereafter, the court, acting under the provisions of section 9 of chapter 651 of the Laws of 1892 (now State Finance Law, § 44) as to moneys paid into court and in the custody of said county treasurer, granted an order directing him after deducting his legal fees to transfer the fund and all accumulation of interest thereon to the state treasurer where it remained for more than seven years and until, by an order of the court made upon the application of claimant as tenant by the curtesy of the fund, it was retransferred to the custody of the county treasurer without notice either to the state comptroller or state treasurer. Pursuant to said order as modified, on application of the attorney-general in behalf of the state comptroller, the exact amount which had been transferred to the state treasurer, without any allowance of interest, was paid over to said county treasurer. Upon the hearing of the claim for interest on the fund during the time it was in the custody of the state treasurer it did not appear that said fund during such period was invested or earned any income, or that any demand was made upon the state treasurer or upon any other state officer by the claimant or any other person for the return of the fund to the custody of the said county treasurer or for interest on or the income of said fund. Held, that in the absence of a statute making the state liable for interest while the fund was in the custody of its treasurer the claim should be dismissed upon the merits, even though it be conceded that the action of the state officers in accepting the transfer of the fund, was unauthorized, unlawful and wrongful.</p> <p>The state is responsible for the consequences of the wrongful acts of its officers only where by statute it has consented to be held liable therefor.</p>

<p>City of - Hew York — traffic ordinance — violation of must he wilful — evidence — criminal law.</p> <p>Where upon the trial of a complaint charging a violation of an ordinance of the city of New York which declares that “No vehicle shall be allowed to remain upon or be driven through any street, so as wilfully to blockade or obstruct the traffic of that street,v the evidence fails to establish beyond reasonable doubt that the defendant did wilfully obstruct the traffic, a judgment of conviction will be reversed, the fine imposed remitted and the complaint dismissed.</p>

<p>Nuisance — what constitutes a public.— evidence — Penal Law, § 1530(1).</p> <p>The ringing of an electric alarm bell for such a period of time and in such circumstances as to annoy, injure or endanger the comfort, repose or health of any considerable number of persons, may constitute a public nuisance under section 1530(1) of the Penal Law, regardless of the fact that the purpose of installing such bell and the use to which it is intended to be put, is the detection of crime.</p> <p>An electric alarm bell installed by the defendant corporation on the outside of a loft building in the vicinity of the New York Hospital, located at No. 8 West Sixteenth street in the city of New York, rang one night without cessation from nine to eleven p. m. The evidence before the grand jury established that among those disturbed were the inmates of said hospital, that the bell could be heard at a distance of seven hundred and twenty feet, was heard distinctly at Seventh avenue and Seventeenth street and the sounds re-echoed from the buildings opposite. There was no evidence as to what caused the bell to ring but it had gone off without any one entering the building and continued to ring until stopped by an employee of the defendant corporation after notice from the police. It also appeared that the other defendant, the president of the corporation and in charge, upon being notified of many complaints concerning the long-continued ringing of the bells installed by the company had said that his business was a cheap substitute for a burglar alarm system, that he did not have to maintain any wires like other systems or ask for permission to run wires under the street or pay any rent for conduits for running wires, and that a bell would ring until he was notified unless one of his men happened to hear it. Held, that the evidence was sufficient to establish a prima facie case of public nuisance, and defendants’ motion to dismiss the indictment will be denied, there being sufficient legal evidence to support the indictment.</p>

<p>Transfer tax — savings banks — when joint account not taxable — order of exemption.</p> <p>When petitioner, a cripple, was over eighty years of age and otherwise unwell, he was the sole owner of a savings bank account, and in order that a neighbor might make withdrawals for petitioner and for no other purpose, the moneys were withdrawn and again deposited in the name of petitioner and said neighbor, to be drawn by either or the survivor. The bank book has always been held by petitioner and all deposits and withdrawals have been made by him. The neighbor died intestate leaving no estate and his wife and next of kin make no claim of ownership to the account or any part thereof. Held, that upon the facts shown, and not rebutted, any inference that th- deposit was jointly owned was removed, and the application of petitioner, who is now eighty-nine years of age, for an order of exemption from the payment of a transfer tax on one-half of said account, granted as against the contention of the state comptroller.</p>

<p>Executors and administrators — when temporary administrators become functus officio — motions and orders >— wills — Code Civ. Pro. §§ 1310, 2770.</p> <p>The affirmance by the Appellate Division of a decree admitting a will to probate and granting letters testamentary, ipso facto, terminates the authority of the temporary administrators, and a motion to revoke the letters of temporary administration will be denied-</p> <p>Where an order appointing temporary administrators provides that they act until “ the further order of this court ’’ the order of the surrogate entered on the remittitur from the Appellate' Division is a sufficient “further order of this court” and terminates the right of the temporary administrators to act as such.</p> <p>The provisions of section 1310 of the Code of Civil Procedure are made applicable to the Surrogate’s Court by section 2770 of said Code, and where on appeal to the Court of Appeals from the decision of the Appellate Division an undertaking duly approved is filed, that part of the motion which asks for an order directing the temporary administrators to forthwith turn over to the executors all the assets of the estate now in their hands or custody or under their control will be denied pending the appeal.</p> <p>Though the right of the executors to administer is strengthened by the affirmance by the Appellate Division of the decree admitting the will to probate, and further confirmed by the denial of a motion for leave to appeal to the Court of Appeals, the executors are prevented from acting because of the existing stay, and in the circumstances the best interests of the estate will be subserved by the appointment of the executors as temporary administrators. Matter of Kennedy, 186 App. Div. 19, followed.</p>

<p>Process — when service of citation by publication invalid — residence — infants — Code Civ. Pro. §§ 2525, 2528.</p> <p>The validity of an order for the publication of a citation to attend a probate proceeding must be determined solely upon the statements in the affidavit or petition upon which it was granted, and every requirement of the statute must be observed.</p> <p>Where a petition for probate after stating that the residence of an infant interested in the estate was in another state and that her postoffice address is at a certain hospital in the city of New York, further states that she and other, infants reside with their mother, whose residence is in the other state, that said infant is now sojourning at and her postoffice address is at said hospital, service of the citation upon her by publication to attend the probate is defective, and does not subject her to the jurisdiction of the court.</p> <p>The attorney having knowledge that said infant was “ sojourning ” or in other words “ residing ’’ within the state of New York, at a fixed address, should have served the citation upon her “ within the state ” under section 2525 of tlic Code of Civil Procedure or pursuant to section 2528 of said Code, by an order founded upon a petition alleging jurisdictional facts.</p>

<p>Summary proceeding to recover possession of real property.</p>

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

<p>Summary proceeding for non-payment of rent.</p>

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

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

Action by a stockholder for an injunction to restrain issue of convertible bonds of defendant corporation and to restrain conversion of said bonds into capital stock of the corporation, so far as issued, and for accounting.

Motion by plaintiff to modify judgment of separation by increasing the amount of the alimony therein provided for her support.

<p>Motion for a reference.</p>

<p>Action for the establishment and enforcement of a trust in personal property.</p>

<p>Demurrer to complaint.</p>

<p>Wills — provisions of — a direction that executors employ a person not binding — executors and administrators.</p> <p>A will though absolute and unconditional is not a contract, and a provision that testator’s son-in-law shall be retained and employed in the conduct of a business which testator directs shall be continued by his sons, who are the executors, at a salary of $2,000 a year, is not binding upon the executors.</p>

<p>Contracts — deeds — action to recover damages for breach of contract — title— reservations — incumbrances — pleading — tender — evidence.</p> <p>In an action to recover damages for breach of a contract for the exchange of real estate, all objections to title which might have been obviated on the closing day, if raised, may not .be considered.</p> <p>To ascertain whether, in any case, a reservation or aii exception is intended, it is necessary to take the language of the deed creating the same, and if the meaning is doubtful, to consider the surrounding circumstances, having in mind that the deed must be construed most favorably to the grantee, that it must be held to have conveyed all the interest of the grantor, unless the intent to pass a less estate or interest appears by express terms or is necessarily to be implied, and that an exception to the fee is not implied, but that the intent to make it must expressly appear.</p> <p>In an action to recover damages for breach of a contract to exchange real estate it appeared that plaintiff had entered into a contract to convey to defendant by a warranty deed a certain farm free and clear of all incumbrances except a mortgage which was mentioned; plaintiff tendered a deed which described the farm as containing a certain number of acres more or less and containing the clause, “ reserving out of the aforesaid described premises the cemetery lot thereon enclosed with an iron fence.” The cemetery, which is not on a highway and no path or road leads to it, was first referred to in a deed from V., by which was conveyed about one hundred acres more or less with a reservation in the words, “ reserving the cemetery enclosed with an iron fence,” and in all deeds subsequently made, including that to plaintiff, the word “reserving ” was used alone and not joined with the word “ excepting.” Held, that defendant had the right to insist upon a deed of the whole farm free and clear of all incumbrances except the mortgage, and • that the complaint should be dismissed with costs to defendant.</p> <p>Each party claimed that the other was solely responsible for the breach of the contract sued on, and demanded judgment for the sum agreed upon as liquidated damages, the plaintiff in his complaint and the defendant in his counterclaim, but the evidence showed that defendant was not ready and willing to perform. Held, that the counterclaim should be dismissed.</p>

<p>Actions — when wife entitled, to maintain action to compel a transfer of stock—corporations—evidence.</p> <p>A wife, upon receiving from her husband certain unindorsed certificates of stock as a wedding present, handed them to a , friend then present, with instructions to keep them for her, and they were retained by him until shortly after the death of her husband and then returned to her. It appeared that two dividends of substantial amounts on the stock were received by the husband, accounted for and deposited to the individual bank account of the wife. Held, that the wife was entitled to maintain an action to compel a transfer of the stock to her upon the books of the corporation, as had her husband lived she could have enforced his obligation to complete the transfer by making the necessary indorsement upon the certificates.</p>

<p>Motion for a new trial on the minutes after a verdict by a jury in favor of the plaintiff.</p>

<p>Eminent domain— appropriation by the state of lands and interests in lands under water — when owner’s rights in lands under water not forfeited — damages — awards.</p> <p>On April 12, 1912, the state of New York pursuant to statute appropriated, from the estate of B. certain lands and interest in certain lands on the shore of and under the waters of Gowanus bay, a part of New York harbor. The trustees of B. assigned their claim for damages to claimant. Upon appeal to the Court of Appeals from a previous award in this ease, it was held that inasmuch as neither B. nor his successors in interest had filled in said lands under water they had never acquired the title in fee simple thereto, but only “ an inchoate, vested interest in the lands described which is a property right and of which, unless forfeited or lost in some way, the grantee cannot be deprived without compensation.” 221 N. Y. 316. Evidence considered and held to show that neither B. nor his trustees had ever abandoned the rights in said property vested in him by legislative grant and such rights had not been forfeited on or before April 12, 1912, but that on that day such vested rights existed in B.’s trustees in full force and virtue and have never since been questioned, withdrawn, forfeited or abandoned.</p> <p>The property right of B. in said lands under water having a very substantial market value and at the time of the appropriation thereof by the state capable of being transferred by deed from his representatives to a private purchaser, immediately passed back to the state, when the appropriation map and notice were served upon said representatives.</p> <p>A contention on the part of the state that the condition subsequent upon which the franchise was held by B., was broken prior to April 12, 1912, not agreed to and claimant held entitled to an award in an amount representing the fair and reasonable market value of the land within the appropriated parcel, either original upland or filled in, at the date of the appropriation together with interest thereon from said date.</p>

<p>Contracts,— what constitutes a breach by the state of a highway contract.</p> <p>Where the state, after having entered into a highway contract by which it guaranteed the sufficiency of the macadam base for the asphalt, determines that such base is insufficient, it must do one of three things:</p> <p>1. Permit the contractor to make the base sufficient, under a supplemental contract;</p> <p>2. Perform such work itself, or by an independent contractor;</p> <p>3. Cancel the contract and thereby become liable to the contractor for damages.</p> <p>Claimant by its contract with the state of New York to do the asphalt work in the improvement of a highway, did not agree that the state might make such changes in the plans and specifications as to arbitrarily and unreasonably change the character of the entire work which claimant had contracted to perform. The necessity claimed to exist for a refusal to permit the construction of the asphalt section was that the macadam base for the asphalt was not sufficient, but upon the terms proposed by claimant it could have been furnished within the amount of the estimated cost of the completed highway. Claimant for six months had been preparing to perform its contract but on the eve of commencing the work, the commissioner of highways, considering the proposed terms of claimant too high, pretended to deem that necessity existed for the abandonment of that part of the improvement, and amended the plans and specifications by cutting out forty-three per cent of the work, thus changing the whole nature of the contract. Held, that the action of the commissioner of highways was capricious, arbitrary and unreasonable, and constituted a breach of the contract at claimant’s election, and that its position that the state had invalidated the contract, notwithstanding a particular provision thereof, was fully warranted.</p> <p>It appearing that claimant would have been able to perform the contract for $13,000 less than the state had agreed to pay it for the work and material, it was entitled to judgment against the state for that sum plus $5,709.54 expended by claimant in preparing to perform the contract, but without interest.</p>

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

<p>Exceptions to referee’s report. (Nathan Ottinger, referee.)</p>

<p>Executors and administrators — when application for letters of temporary administration upon estate of absentee denied — Code Civ. Pro. § 2596 (2).</p> <p>An application under section 2596(2) of the Code of Civil Procedure for letters of temporary administration upon the estate of an absentee, a citizen of Russia who has been missing since July, 1917, will be denied where such administrator, if appointed, would really be the attorney in fact of the absentee to perfect the title of the purchaser of a patent from the absentee.</p>

<p>Jurisdiction — of Surrogate’s Court — foreclosure surplus moneys — Code Civ. Pro. §§ 1633, 2510. .</p> <p>The legislature has constitutional power to enact a statute providing for the depositing in the Surrogate’s Court surplus moneys arising upon a sale in foreclosure.</p> <p>Where one dies seized of mortgaged real estate any surplus arising on a sale thereof under a decree of foreclosure is to be regarded as realty.</p> <p>The power granted by the provision of section 1633 of the Code of Civil Procedure which declares that the Surrogate’s Court, in a special proceeding brought for that purpose, may by an order direct the distribution of m'oney paid into court to the persons entitled thereto where eighteen months have elapsed since the grant of letters of administration, is amplified and extended by section 2510 of said Code which relates to the general jurisdiction of Surrogates’ Courts.</p> <p>Where surplus moneys arising upon the foreclosure of a mortgage upon real estate of which decedent died seized were deposited with the county treasurer subject to the order of the Surrogate’s Court pursuant to section 1633 of the Code of Civil Procedure an application by the second mortgagee in the foreclosure action for the payment to her of said surplus moneys will be granted to the extent of her interest therein.</p> <p>All parties in interest being before the court the balance of said surplus moneys will be directed to be paid to the undertaker on account of his claim for funeral expenses.</p>

<p>Action for damages for breach of covenants of a lease.</p>

<p>Action to have chapter 604, Laws of 1916, adjudged unconstitutional.</p>

<p>Condemnation proceedings — prior appropriation by state — judgments — default.</p> <p>Where a judgment and order appointing commissioners in a condemnation proceeding was taken on the failure of the attorney of a property owner to carry out instructions to contest the right of plaintiff to take defendants’ property and it appeared that defendants at no time consented to the taking of the judgment and order, and that their proposed answer raises the question of necessity and the right to condemn, by reason of a prior appropriation of the land by the state,' a motion to vacate and set aside the judgment and open the default will be granted.</p>

<p>Motions to change place of trial and for security for costs.</p>

<p>Subscriptions — ‘ ‘ War Chest ’ ’ fund — associations — evidence — pledges — actions — Code Civ. Pro. § 1776.</p> <p>An incorporated association organized in a city to solicit subscriptions to the “War Chest” fund issued printed pledge cards by which a subscriber agreed to pay monthly for one year to the treasurer of the association one dollar. In an action brought by the association in a local court to recover a balance due upon the pledge card signed by defendant the answer was a general denial. Upon reversing the judgment in favor of defendant entered on a verdict of no cause of action, held: That under section 1776 of the Code of Civil Procedure it was doubtful whether defendant had the right to question the regularity and validity of the proceeding for the incorporation of plaintiff.</p> <p>There being no real claim of fraud asserted, testimony of defendant as to his understanding at the time he signed the pledge card and his ignorance of its conditions was inadmissible, being neither necessary to prove consideration nor to explain any ambiguity in the terms of the pledge card.</p> <p>In view of the affirmative testimony of the officers and employees of plaintiff that certain of the funds were expended and liabilities incurred upon the strength of defendant’s and similar pledges, defendant’s right of cross-examination as to when, where and how the funds were expended could not be curtailed, but questions of waste and mismanagement were not triable in this action, as the propriety of the various items of expenditures was irrelevant to the issue.</p>

<p>Action on wager made on horse race in Louisiana.</p>

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

<p>Injunctions — when granted — contracts — negative covenants — damages.</p> <p>An agreement by defendant, the manufacturer of stucco calcined plaster, in a contract for the delivery of its products, that it will give priority, in respect of time of delivery, to orders óf the plaintiff, which manufactures fireproof building blocks out of stucco calcined plaster, is in effect a negative covenant not to deliver to others until the requirements of the plaintiff as to deliveries have been met according to their contract, and if the defendant has violated its covenant, any future violation, in the absence of an adequate remedy of law, may be restrained by injunction.</p> <p>It clearly appearing that defendant’s breach of said covenant was without sufficient excuse and has caused the plaintiff much damage, the greater part of which is not susceptible of proof, an injunction will be granted to restrain any further violation of the covenant and judgment given for such certain but inadequate damages as can be proved.</p>

<p>Divorce — modification of decree as to support of children — adoption.</p> <p>Where a wife obtains a decree of divorce and her new husband legally adopts her children their father’s motion to strike from the decree of divorce the direction requiring him to support the children will be granted.</p>

<p>Divorce — action for — alimony — what sufficient basis to stay all proceedings — pleading.</p> <p>While failure to pay alimony and counsel fees in an action for divorce may be a sufficient basis to stay all proceedings on the part of the plaintiff, it is not a legal ground for striking out his complaint.</p>

<p>Action in equity.</p>

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

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, entered upon a dismissal of a complaint in favor of the defendant A. Langstadter, Inc.

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

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

Appeal by plaintiffs from a dismissal of the complaint without prejudice at the close of plaintiffs’ case in the Municipal Court of the city of New York, borough of Manhattan, third district.

Appeal by plaintiff from a judgment dismissing the complaint upon the merits after a trial by a judge in the Municipal Court of the City of New York, borough of the Bronx/ second district, without a jury.

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

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

<p>Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, in favor of plaintiff, after a trial with a jury. Judgment by direction of verdict.</p>

<p>Negligence — evidence — when plaintiff must show defect in bottle or in contents making same probably dangerous.</p> <p>Plaintiff purchased at a department store a bottle of a preparation used for cleaning and dyeing straw hats, and while holding it in her hand the bottle broke and the liquid, which was not inherently dangerous, was splashed in all directions, injuring her eyes, hair and clothing and destroying certain household effects. In an action against the manufacturer who had sold the preparation to the store, brought on the theory of negligence, there was no proof that the bottle was peculiarly defective in construction or that it was cracked, broken or improperly filled, nor was there evidence of any prior accident resulting from the handling or use of the preparation which was sold in large quantities daily. Upon reversing a judgment in favor of plaintiff and dismissing the complaint, held, that it was incumbent upon the plaintiff to show that there .was a defect in the bottle or in the preparation or condition of the contents which would render the bottle probably dangerous. Plaintiff was also bound to show that an examination or inspection of the bottle by defendant would have disclosed any defect, and that in the absence of such proof, there was no foundation upon which to predicate any finding of negligence on defendant’s part.</p>

<p>Appeal from judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, eighth district, dismissing the complaint on plaintiff’s evidence.

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

<p>Bankruptcy — composition agreement — motions and orders — judgments — Debtor and Creditor Law, § 150.</p> <p>Where a consenting judgment creditor under the terms of a composition agreement in bankruptcy, duly confirmed, receives a certain proportion of its claim in cash and the balance in notes, only one of which has been paid, an order denying defendant’s motion made under section 150 of the Debtor and Creditor Law, to cancel and discharge of record the judgment, will be reversed and the motion granted.</p>

<p>Mandamus — when application by the borough president of the city of New York for a peremptory writ of, granted — meaning of “ change of grade ’ ’— street railways — Greater New York charter, §§ 383, 441, 442, 447 and 951 — Railroad Law, § 178.</p> <p>A change in the surface contour of a street does not involve B “ change of grade,” within the meaning of that term as used in sections 441, 442, 447 and 951 of the Greater New York charter. The grants of. power to the city of New York from which a delegation of the power to require a railway company to raise its rails, is necessarily implied, is found in section 383 of the Greater New York charter, read in connection with section 178 of the Railroad Law, and the exercise of the powers so conferred on the borough president, do not necessarily involve a “change of grade” such as only the board of estimate may make.</p> <p>The borough president of the city of New York has power to decide when and how the city streets shall be repaved and an application by him for a peremptory writ of mandamus directing a railway company to conform its rails to the surface grade of the street as shown on the plans, duly approved, calling a change in the crown of the roadway, will be granted.</p>

Motion by the defendant Nielsen to compel- the plaintiff to accept an amended answer, or, in the alternative, for leave to amend in accordance with the said amended answer.

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

<p>Licenses — Greater New York charter — limited authority of commissioner of licenses — Code of Ordinances.</p> <p>The power conferred by the Greater New York charter to regulate places of amusement within the city, does not carry with it any authority to interfere with the price of admission to such places or the resale of tickets.</p> <p>An application by the commissioner of licenses of the city of New York for the revocation of a license issued to respondent pursuant to the Code of Ordinances of the city permitting him to conduct the business of selling tickets of admission to exhibitions or performances must be denied upon the ground that the petitioner is not authorized to institute the proceedings.</p>

<p>Specific performance — when refusal to take title on closing day does not preclude an action for specific performance — contracts — deeds — restrictions.</p> <p>The plaintiff in an action to compel specific performance of a contract to convey certain real property having been advised by a title company that a restriction in the deed of the same premises to defendant was still enforceable, declined on the day set for closing the title to accept a deed of the premises unless defendant would agree to a reduction of the purchase price. Meld, that as before the contract was signed, defendant had been informed that it was the intention of plaintiff to erect one-family semi-detached dwellings on the premises, the conduct of plaintiff in regard to not accepting the deed was not entirely without justification and did not preclude her thereafter from insisting upon a performance of the contract by defendant.</p> <p>Plaintiff having acted in good faith and being now willing to take the property subject to any restrictions referred to in the contract that may exist, without any reduction of the purchase price by reason thereof, was entitled to a decree of specific performance.</p>

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

<p>Demurrer to complaint.</p>

<p>Return on a writ of habeas corpus.</p>

<p>Action for the construction of a will. Trial had before the court without a jury.</p>

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

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

<p>Claims — against the state — when state not liable for negligent acts of its officers and agents.</p> <p>The state is not liable for the negligent acts of its officers and agents resulting in personal injuries, except where it has expressly waived immunity or assumed liability by constitutional or legislative enactment.</p> <p>Where in a public park a sham battle was engaged in by members of the state militia who were instructed to use blank cartridges but through the carelessness of some militiaman, a cartridge with a steel jacket and bullet was fired from one of the rifles and injured a spectator, a motion to dismiss the claim for damages must be granted on the ground that the state is not liable.</p>

<p>Claim for damages for alleged breaches by the state of a contract for highway construction.</p>

<p>Licenses — powers of commissioner of licenses of the city of New York— criminal law—ordinances.</p> <p>The commissioner of licenses of the city of New York has no authority to limit a license to peddle merchandise to the sale of “foodstuffs only.”</p> <p>Where the holder of such a restricted license sold shoes on a push cart, his conviction for peddling without a license in violation of a city ordinance, will be reversed and the charge dismissed.</p>

<p>Receivers — supplementary proceedings — extension of receivership — associations — judgments — bankruptcy — accounting.</p> <p>After the entry of judgment in favor of the receiver in proceedings supplementary to execution, of an unincorporated benefit association, to recover funds belonging to it, the receivership was extended to cover another judgment which, in the meantime, had been recovered against the association, which subsequently was adjudged an involuntary bankrupt. In a litigation as to the right of the first judgment creditor to have his judgment paid, the bankruptcy court decided, that as the supplementary proceedings had been instituted upon said judgment more than four months prior to the filing of a petition in bankruptcy, the property in the hands of the receiver, to the amount of said judgment and costs, had become vested in him and that the residue of the funds, if any, was subject to distribution in the bankruptcy court. Held, that the order extending the receivership having been granted less than four months prior to the adjudication in bankruptcy, this court, upon the settlement of the accounts of the receiver, had no power to grant an order directing that any balance remaining in his hands, after payment of the first judgment and costs, should be applied on the second judgment to which the receivership had been extended.</p>

Action to recover the sum of $204 upon a written subscription agreement whereby the defendant promised to pay to the “ Mechanieville War Chest,” for the purposes for which it was organized,- the sum of $204, such payments to be made to “ F. S. Clute> Treasurer, or his successor in office. ’ ’ After receiving a large number of similar pledges the corporation treated them as assets, and upon the strength thereof appropriated to the various so-called war charities amounts…

<p>Wills — execution of — undue influence — subscribing witness —, probate — evidence — incompetent persons — Code Civ. Pro. § 2323-a.</p> <p>Where one of the subscribing witnesses to a will is an attorney, there is a presumption that the formalities of execution were complied with.</p> <p>An allegation that the execution of a will was procured by the exercise of undue influence upon the testatrix is an affirmative assault upon the validity of the instrument and the burden of proof remains upon the party who asserts such undue influence.</p> <p>Undue influence imports coercion and must be such as substitutes for the wishes and desires of the testatrix those of the one exercising the influence so that the instrument does not in fact express the will of the testatrix but that of such other person.</p> <p>Mere opportunity to exercise undue influence in such a case does not of itself warrant an adjudication that it was availed of, nor can the influence of feelings of gratitude to a beneficiary for kindness shown be regarded as undue influence.</p> <p>In a proceeding for the probate of an instrument purporting to be a last will executed by the alleged testatrix in January, 1919, at the age of seventy-three, it appeared that most of the time between 1900 and 1909 she had been confined in private sanitariums and upon being removed to the Middletown State Hospital remained there until April 5, 1915, when without the knowledge of one of her two daughters, who in February, 1915, upon the application of the superintendent of the hospital had been appointed the committee of the person and property of decedent and was still acting as such, decedent was paroled in the custody of her other daughter with whom she resided from January, 1916, to the time of her death. Upon denying probate on the ground that proponent, the other daughter of decedent, had not sustained the burden of showing that the alleged testatrix was of sound mind and memory at the time of the execution of the alleged will, held, that the order appointing the committee under section 2323-a of the Code of Civil Procedure, while not conclusive, was prima facie evidence of the incompeteney of the alleged testatrix at the time said order was made; that it would be assumed that in the proceedings on the commitment to the state hospital all the steps required were regularly taken; that decedent had been duly committed according to law and that she was detained as an inmate of the hospital by virtue of a valid order of commitment.</p> <p>The evidence showing that decedent was incompetent to manage her affairs at the time she was committed to the state hospital, a presumption of continuance of incompetency arose subject to being rebutted by evidence clear and satisfactory tending to show that when the alleged will was signed by decedent she had sufficient mental capacity to execute it either because she had recovered or because the instrument was executed during a lucid interval.</p>

<p>Discovert proceeding.</p>

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

<p>Executors and administrators — when letters of administration will be revoked — evidence — husband and wife — marriage.</p> <p>Letters of administration granted to one claiming to be the husband of decedent by a civil marriage will be revoked upon the petition of the husband of decedent by a common-law marriage entered into some time previous to the civil marriage.</p>

<p>Appeal from an order entered upon the report of a transfer tax appraiser.</p>

<p>Sales — of goods — contracts — automobiles — bailment — actions — Personal Property Law, § 150(5).</p> <p>The purchaser under a contract for the sale of an automobile rescinded the sale and upon the seller’s refusal to accept the return of the car, stored it in a garage, insured it against theft and fire and notified the seller that it would be held liable for the expense incurred. The car remained in storage and the insurance remained' in force after the trial of an action to recover the purchase price and until the judgment recovered therein by the seller had been affirmed on appeal and paid. Held, that upon the seller’s refusal to accept a return of the car, the purchaser became a bailee for hire and under section 150(5) of the Personal Property Law (Laws of 1909, chap. 45) was entitled to recover of the seller the amount expended for storage and insurance.</p> <p>The judgment in the action to recover the purchase price, in which no claim was made for the expense of storage and insurance, was not a bar to the present action.</p>

<p>Action to recover certain death benefits.</p>

<p>Motion to intervene.</p>

<p>Motion for a temporary-injunction.</p>

<p>Certiorari — when motion for an order suspending and staying an order of public service commission denied — injunctions — street railways — motions and orders — Code Civ. Pro. §§ 603, 604 — Code Civ. Pro. § 2131 — Public Service Commissions Law, § 23(2).</p> <p>The public service commission, first district, having made an order forbidding the collection of an additional fare on the Flatbush avenue line of the Brooklyn City railroad, and granting permission to collect a fare on said line upon giving a refund ticket to each passenger so paying the second fare, a motion by the railroad company for an order suspending and staying in all respects the order of the public service commission, pending the decision of the Appellate Division upon a writ of certiorari to review said order, must be denied as the only order that might be made by the court under section 2131 of the Code of Civil Procedure would be to stay the public service commission from executing its own order.</p> <p>There being nothing in the Public Service Commissions Law to indicate that injunctive relief may be granted otherwise than in an action as provided in sections 603 and 604 of the Code of Civil .Procedure, section 23(2) of the Public Service Commissions Law, which apparently was intended to prevent the issuance of an ex parte order to stay the proceedings of the public service commission and to grant such an order only upon notice and a hearing, does not apply here as the motion is not made in any action.</p>

<p>Action to compel specific performance.</p>

<p>Certiorari — board of appeals — garage — zoning regulations — Greater New York charter, §§ 242-a (as amended), 719(5).</p> <p>Under section 719(5) of the Greater New York charter and chapter 601 of the Laws of 1917 amending section 242-a thereof, the board of appeals has power, in exceptional cases in the interests of justice, to vary the regulations of the board of estimate relating to the construction of buildings within the city, and even though the action of said board of appeals in granting a permit for the erection of a public garage covering an entire plot in a residence district will result in the demolition of a frame stable on the rear of the plot which had been used for more than twenty years by from eight to twelve horses, the determination of the board will be affirmed on certiorari.</p>

<p>Certiorari — when determination of board of appeals will be annulled — garage.</p> <p>Where the action of the board of appeals in granting a permit for the erection of a public garage in a highly restricted residential district of Brooklyn appears to have been based upon the contention that there being no such garage in that locality there should be one, and it further appears that the decision of the board in fixing the area of the property deemed to be affected was at variance with the board’s general rules on the subject previously adopted, its action in including the property itself as a part of that deemed to be affected was improper and its determination will be annulled on certiorari, • with costs.</p>

<p>Arrest — who not immune from service and arrest — when motion to vacate service of summons and complaint and order of arrest denied — criminal law—Civil Eights Law, § 25.</p> <p>A person under arrest on a criminal charge, though out on bail, is not immune from the service of civil process or from civil arrest.</p> <p>Defendant after an absence from the state of about two years was arrested and admitted to bail upon a charge of having abandoned his wife and children, and on the adjourned day that the proceeding in the Domestic Relations Court was finally terminated, he was served with the summons and complaint in a civil action. Held, that his motion to vacate the service of the summons and complaint and the order of arrest, on the ground that he was immune from such service and arrest, will be denied.</p> <p>As the defendant was not in court “ for the purpose of being examined,” section 25 of the Civil Rights Law did not apply.</p>

<p>Action for partition. Jury waived.</p>

<p>Workmen’s Compensation- Law — complete protection to employer against common law actions — statutes.</p> <p>The Workmen’s Compensation Law establishes a new tribunal, summary in character, for the recovery of damages arising out of injuries to employees, and the doctrine that the relation of employer and employee does not exist within the meaning of the statute unless the employment is a “ legal ” one, violates the spirit of the statute and reads into it a provision never intended by the legislature.</p>

<p>Damages — awards — evidence — temporary appropriation of lands by the state — railroads — Canal Law, § 84.</p> <p>An action to restrain the state from laying a track along a public highway extending through claimants’ property, a summer resort at Oneida lake, in order' to make a connection between a branch of a railroad and state lands, for the purpose of conveying material to be used in the construction of the Barge canal, resulted in the payment of $350 in full for damages, a discontinuance of the action and the consent of claimants to the construction of the proposed track and the use thereof to July 1, 1917. A few days before that date, the state made a temporary appropriation of a strip of claimants’ land eight feet by three hundred and thirty-six feet, for a period of five years from the date of such appropriation, and within six months thereafter claimants filed a notice of intention to file a claim for damages for the appropriation of their land and for damages to the remaining land and buildings including damages caused by the maintenance and operation of the railroad. At the time of such appropriation claimants’ buildings were all under lease at an aggregated annual rental of $2,200; they lost no rents nor so far as the evidence disclosed had there been any damage or permanent injury to the land or any increase in taxes or insurance or any pecuniary loss by reason of the maintenance and operation of the railroad which was only occasionally used. Held, that claimants’ rights to damages for the temporary appropriation by the state were secured by section 84 of the Canal Law, and that on the proofs, no greater award than five dollars, to cover the period from such appropriation down to the time of the filing of the claim, could be justified.</p>

<p>Supplementary proceedings — when motion to vacate order denied — corporations — General Corporation Law, § 221 (3) — Code Civ. Pro. § 2444.</p> <p>Since section 221(3) of the General Corporation Law declares that a corporation, though dissolved, continues in existence for the purpose of being sued, etc., its existence and its business situs must be deemed to continue for the purpose of enforcing a judgment obtained against it.</p> <p>The corporation must be deemed to have an officer who, under section 2444 of the Code of Civil Procedure, can be directed to attend and be examined in proceedings supplementary to execution, and where such an order directs the corporation to appear by the person who, at the time of the filing of o the dissolution certificate was president of the corporation, a motion to vacate the order on the ground that the corporation had been dissolved prior to the institution of the supplementary proceeding, and upon the further ground that the corporation has no place of business, must be denied and said president directed to appear for examination.</p>

<p>Accounting — who entitled to — who is a person interested in estate of decedent — executors and administrators — wills — equitable conversion — devise — dower — Code Civ. Pro. § 2768(11).</p> <p>Where a testator’s intentions can be carried out although no equitable conversion of his real estate is adjudged, and neither by his will giving the executors a discretionary power of sale, nor by the situation of the estate, does there appear to be any necessity for such a sale, it must be held that no equitable conversion of real estate devised by the residuary provisions of the will was effected.</p> <p>The proceeds of any sale under the power are to be paid to the same persons to whom the real estate was devised, and one who by reason of her inchoate right of dower in her husband’s share of any part of the proceeds of a sale, is a person interested in the estate of the decedent under section 2768(11) of the Code of Civil Procedure, is entitled to an accounting from the executor with respect to such proceeds.</p>

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

<p>Wills — construction of — trusts — residuary estates — devise — accounting — life tenants — power of appointment — suspension of power of alienation — Real Property Law, §§ 175, 178.</p> <p>Under the will of a father, his surviving son and daughter each received a beneficial interest for life in one-half of the residuary estate and in addition each received a remainder for life in the other half, contingent upon survivorship after the death of the original life tenant without issue, and the remainder after the death of both life tenants was devised to their issue or in default of issue, to such person as the survivor of the life tenants might by last will appoint. The testator’s daughter who died without issue devised and bequeathed her residuary estate to her brother, who died after his sister, without issue, leaving a last will by which he devised and bequeathed the residue of his estate to plaintiffs in trust for his wife with direction to transfer and convey the same, at her death, to such persons as she might appoint, and in default of such appointment, or in the event his wife should predecease him, to certain persons named in his will. In an action for the settlement of the son’s account as surviving trustee under the will of his father, and for the determination of the rights of the parties to certain real estate and the proceeds of real estate under the terms of the several wills, held, that under section 175 of the Real Property Law the power of appointment in the son’s will, if otherwise valid, must be deemed an</p> <p>execution of the power of appointment conferred upon him by the will of his father, though it was neither recited nor referred to in the son’s will.</p> <p>Where, as here, the son in addition to the power conferred on him by his father’s will had an independent interest in the property, the statutory rule (Real Property Law, § 178) that his will must be regarded as an execution, so far as valid, of the power conferred on him by his father’s will, did not apply, and the court must give effect to the whole will of the son as a devise of his independent interest, and even if he could not devise it for life, the court will then regard the entire attempted devise as invalid.</p> <p>The father’s will making no provision for the contingency of both his children dying without issue and without executing the power to dispose of the remainder after the death of the life tenant, there was a reversion in his estate which passed as if he had died intestate, and his son being at the time of his death an heir at law of his father and the residuary devisee of his sister, was the owner of the entire reversion of his father's estate and had a right to devise the same, entirely apart from the power of appointment under his father’s will.</p> <p>The will of the son created a new future estate in his property which was valid because, standing alone, it did not suspend the power of alienation for more than one life, and the mere fact that such new estate followed immediately upon a previous trust for two lives does not alter the rule, for the new estate did not continue the earlier trust but constitutes a new and independent suspension of the power of alienation, not in contravention of the statute.</p>

<p>Restitution — when motion directing restitution of alimony denied — motions and orders — separation.</p> <p>The principle upon which restitution is ordered does not apply either to temporary or permanent alimony.</p> <p>Where a judgment for plaintiff in her action for a separation has been reversed by the Appellate Division, a motion for an order directing the restitution of alimony paid pursuant to the judgment and restraining the further prosecution of a claim to recover on notes given on account of alimony, must be denied on the ground that alimony is not a subject of restitution.</p>

<p>Mandamus — when application for a peremptory writ of, to reinstate to position of laboratory assistant granted — civil service — Greater New York charter, § 1101.</p> <p>Upon an application for a peremptory writ of mandamus, made after the jury trial of issuable facts presented on the return to an alternative writ, the relator has the right to assert that as matter of law the alternative writ should not have been granted.</p> <p>The board of education of the city of New York duly certified relator, a laboratory assistant, to the position of assistant teacher of chemistry, and a temporary license issued to him for a year was renewed for a second year. He was not given a third year renewal, service under which was requisite for the issuance of a permanent certificate for the new grade, but the acting superintendent of schools reassigned him to the position of laboratory assistant and after fourteen months’ service in that position, the salary of which he drew, he was suspended on charges which Were neither served nor tried. Ultimately he was notified of his dismissal from the teaching force because he had never been duly appointed or reassigned to the position of laboratory assistant, because his license as assistant teacher had not been renewed for a third year. Held, that the claimed lack of power to make a reassignment except from an eligible list of persons certified as qualified to fill the position of laboratory assistant in the department of education was an afterthought, and contrary to the practical construction given to section 1101 of the Greater Hew York charter since its enactment in 1897 and under its revision since 1901, and that the application for a peremptory writ of mandamus to reinstate relator to the position of laboratory assistant will be granted.</p>

<p>Action upon an insurance policy.</p>

<p>Judgments — when motion for, granted — assignments — action to impress a trust or lien upon real property—executions.</p> <p>In an action to impress a trust or lien upon real property it appeared that after the recovery of a judgment for $3,900 in favor of one of the defendants against two of the other defendants, the plaintiff entered into a written agreement under the provisions of which, as was clearly established, he advanced $3,000 to the judgment debtors, which was applied by one of them in part payment of the purchase price of the premises in question. Thereafter an assignment of the $3,900 judgment was duly filed in the county clerk’s office and under an execution issued by the assignee the sheriff advertised the property for sale. Held, that as should judgment be given in favor of the assignee of the judgment it would in effect result in a part of the claim of the judgment creditor being paid by plaintiff, plaintiff’s motion for judgment will be granted, on the authority of Haring v. Brooklyn Heights B. Co., 221 N. Y. 694.</p>

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

<p>Transfer tax — bequest to a masonic lodge not subject to — charitable corporations — Tax Law, § 221.</p> <p>A masonic lodge is both a charitable and benevolent corporation within the meaning of section 221 of the Tax Law, and a bequest of money thereto to be used in the erection of a temple for the lodge and the purchase of a site therefor, is not subject to a transfer tax.</p>

<p>Accounting — testamentary trustees — trusts — wills — accumulation of income — Beal Property Law, §§ 61, 63.</p> <p>A direction to testamentary trustees to invest “ all or any trust moneys, including unexpended income and profits thereof,” and to pay to a named person upon her becoming a widow all of the estate, “including any unexpended income thereof,” implies an accumulation of surplus income, and such accumulation being void under section 61 of the Real Property Law, and the will containing no direction for the disposition of surplus income, the named person has a vested remainder in the trust fund and being the one presumptively entitled to the next eventual estate under section 63 of said statute the accumulated income in the hands of the accounting trustees belongs to her.</p>

<p>Trusts — trustees — alien enemies — accounting — evidence — alien property custodian — Personal Property Law, § 16.</p> <p>Among the securities included in two testamentary trust funds were a certain number of shares of the stock of a certain corporation in trust for A., subsequently declared to be an absentee alien enemy, and a certain number of the shares of the same stock in trust for B., and all of such shares in both funds were bought in by the corporation in 1912 at $415 a share. In the accounts of the trustees filed two years later, the entire proceeds of sale were treated as “ capital,” and a decree was entered accordingly, but, on the contention of B. that part of the $415 was accumulated profits which should be paid to him as income, the surrogate’s decree was reversed in part and in 1918 a new decree correcting the accounts of the trustees in respect to the trust for B. by an allowance of $85 per share as income, was entered. No action having been taken to distribute the surplus income now in trust for A. the alien property custodian, representing the beneficiaries of that trust, and seeking to compel payment of said income, made an application, upon motion for the confirmation of the report of the referee to take the account of the trustees, for leave to file objections thereto nunc pro tunc. Meld, that the unlawful accumulation of income at present in the hands of the trustees is void under section 16 of the Personal Property Law, and that the decree entered in 1918 was not conclusive against the right of the life tenant of the trust for A. to demand payment of the surplus income, and unless the parties stipulate as to the apportionment of income and capital in said trust the court will, on the taking of testimony, make a proper apportionment and reserve its decision on the motion to confirm the referee’s report until after it has disposed of the objections filed thereto.</p>

<p>Ships and shipping — seamen’s wages — shipping articles — associations— releases — United States Revised Statutes, § 4552.</p> <p>Plaintiff engaged to work as a seaman on one of defendant’s ships under articles which though not specifying the hours which plaintiff was required to work contained the following clause in the handwriting of the United States shipping commissioner : “ In event of a general change in wages while ship is away, said change to take effect from date of change.” Plaintiff worked twelve hours a day at sea and nine hours a day in port in accordance with the system then in vogue, but while the vessel was at sea, a sailors’ association of which he was a member and a steamship association of which defendant was a member, entered into an agreement which provided for an eight-hour day and no work on Sundays and holidays while the vessel was in port. The agreement also provided for an overtime rate per hour for all work done before or after working hours when the vessel was in port, but there was no specification as to the rate of compensation for overtime while the vessel was at sea. After the return of the vessel to the port where the shipping articles were signed plaintiff was paid his wages at the rate provided by the agreement made at sea. In an action to recover an amount figured on the basis of overtime work beyond the eight-hour day both while the vessel was in port and at sea, held, that a release, as provided by section 4552 of the United States Revised Statutes, executed by plaintiff at the time of the payment of the wages, whereby he released the master and owners of the vessel from all claims in respect to the past voyage or engagment, was conclusive against the plaintiff’s claim, and that defendant was entitled to judgment.</p>

Appeal by defendant trustee under the will of Samuel D. Bradford, from a judgment in favor of the plaintiff after a trial by the Municipal Court of the city of New York, borough of Manhattan, ninth district, without a jury, and from two intermediate orders, viz.: (1) denying a motion to dismiss the complaint for want of jurisdiction, and (2) denying a motion to dismiss the complaint for defect of parties defendant and insufficiency and that new parties be brought in.

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

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

Appeal by tenant from final order of the Municipal Court of the city of New York, borough of Manhattan, fifth district, entered on verdict directed for landlord.

<p>Contracts — terms of — actions — evidence — guaranty — trial.</p> <p>Where the evidence in an action to recover for work, labor and services and material furnished in putting roofs on buildings owned by defendant shows that there was some contract made with the defendant, the plaintiff is not entitled to recover unless proof is made of all the terms of the contract and plaintiff’s compliance therewith.</p> <p>It clearly appeared from the testimony of plaintiff corroborated by defendant as a witness for plaintiff that while defendant was interested only in obtaining satisfactory roofs with a written guaranty that plaintiff- would maintain them for five years, he assumed that the work would be done in a proper and workmanlike manner. Held, that plaintiff as part of its affirmative ease was hound to show that, whatever might have been the terms of the contract in regard to the nature of the work, it had sent a written guaranty to the defendant.</p> <p>• Held, further, that in the absence of proof that plaintiff had complied with its contract, the introduction in evidence of a letter sent by plaintiff to defendant after the contract had been made, which constituted only a guaranty of the roofs described therein and which could have no force except as a part of the contract, did not prove an affirmative case.</p> <p>The trial judge correctly ruled that plaintiff, having shown that there was some contract made with defendant, could not recover unless it showed all the terms of the contract and also its compliance therewith, but under a further though erroneous ruling that a proposed contract between plaintiff and a former owner of the building became the contract between the plaintiff and defendant, held that plaintiff was bound to prove the contents of its offer or estimate for the work made to the former owner, and excluded plaintiff’s evidence of the work it had done until that estimate was proven. Held, that the terms of plaintiff’s offer to the former owner were not relevant to the present action; that the terms of the contract between plaintiff and defendant were settled by their agreement and plaintiff’s letter to defendant, and that the exclusion of plaintiff’s evidence as to the work done by it was erroneous though the justice was led into the error by the attitude of plaintiff’s counsel that plaintiff was not bound to show that it had complied with the terms set forth in its letter.</p> <p>After the trial justice had so ruled and after defendant as a witness for plaintiff had testified that he saw the work being done and that it was satisfactory to him; that it was done at his request and that he agreed to pay therefor a certain amount of money, the plaintiff rested and considerable testimony, not contradicted by plaintiff, was given on behalf of.defendant to show that the work had not been done in a workmanlike manner, or as set forth in plaintiff’s letter. Upon reversing a judgment directed in favor of defendant and ordering a new trial, held, that the admissions of defendant that the work was done and was satisfactory to him did not preclude him from showing by the testimony of experts that even though the work was satisfactory to him it was not performed in accordance with the contract.</p>

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

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

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

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

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

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

<p>Wills — construction of — trusts — accounting — executors and administrators — life estates — advancements — Real Property Law, § 43.</p> <p>Under the provisions of a trust agreement, the income of the trust fund was payable to the wife of the settlor until her death or remarriage and thereafter to the settlor's son for life, who was also to receive, at his mother’s death or remarriage, one-half of the principal of the trust fund, if he was thirty years of age, or when he arrived at such age, and upon his death the balance of the trust fund was to be distributed as he by his last will directed, and failing such direction said balance was to be divided equally between his surviving uncles. After the death of the settlor, the trustee continued the payments of income to the widow until her remarriage, at which time her son was not thirty years of age, and accordingly received all the income of the trust fund, and upon reaching that age, one-half of the principal of the trust fund was paid to him and until his death he received the income from the remaining half of the principal. The son died without issue and a bequest under his will of one-fourth of said trust fund provided that, in the event of his death without lineal descendants, the remaining three-fourths should go to his widow for life or until her remarriage, with remainder over to his brother, the latter’s descendants, and finally to testator’s three uncles or their issue per stirpes, and the will further provided that his widow might convey her life estate in trust because he had been unable, under the law against the suspension of absolute ownership, to leave it in trust for her. In an action for the judicial settlement of the accounts of the trustee under the trust agreement the administrators of testator’s widow claimed that he had invalidly exercised his power of appointment under the trust agreement and that the next of kin of his widow were entitled, under the Statute of Distributions, to the residue of the entire trust fund. Held, that the family scheme was to give the beneficial uses of the property to the respective widows for life, and that thereafter it should not go to aliens in blood, and that plaintiff was entitled to judgment directing the payment of one-fourth of the principal of the estate of testator to the administrators of his widow, less advancements made thereon and directing payment of the residue to his brother, without costs, payable out of the share passing to said administrators.</p> <p>Section 43 of the Real Property Law held to have no application to the present proceeding.</p>

Issues of law raised by the plaintiff; demurrer to the second separate defense set up in the answer of the defendant Columbia Trust Company brought on by the plaintiff as a contested motion, asking for an order sustaining the demurrer, with costs.

<p>Constitutional law — regulation 17 of department of health of the . city of New York as amended in 1919 — injunctions.</p> <p>Regulation 17 of the department of health of the city of New York, which, as amended in 1919, requires manure taken from stables in the city to be transported to dumps operated under licenses from said department or to farms in the unimproved portions of the city, is constitutional, and the complaint in an action to restrain the enforcement of said regulation will be dismissed upon the merits and an injunction granted pendente lite vacated but without costs.</p>

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

<p>Civil Service Law — when motion to compel certification of payroll denied — when applicant for the position of “official examiner of title ’ ’ must pass the civil service examination — statutes — Beal Property Law, § 377.</p> <p>The position of “ official examiner of title ” is not in either “ the exempt class, the non-competitive class or the labor class,” under the Civil Service-Law.</p> <p>Section 377 of the Real Property Law, which authorizes- the register of any county to appoint as official examiners of title those who shall qualify under the Civil Service Law and such rules as may be adopted by the Court of Appeals but which makes no provision for the competitive examination required by the Civil Service Law, did not repeal section 14 of that statute and an applicant for such position must pass both the competitive examination and that prescribed by the Court of Appeals.</p> <p>Relator having under the rules promulgated by the Court of Appeals passed the examination prescribed by the board of law examiners was duly certified by said board and the county clerk of Queens county, who is ex officio the register, appointed him to the position of official examiner of title, but the civil service commission refused to certify the payroll containing his name upon the sole ground that he had not passed the civil service examination. Meld, that his motion to compel certification of said payroll must be denied.</p>

<p>Specific performance — when may be decreed — deeds — contracts — dower — abatement.</p> <p>Where a man has made a contract to convey real estate but his wife, though she agreed to the sale, refuses to sign the deed, specific performance may be decreed with a provision for an abatement in the purchase price representing her dower interest if she does not join in the conveyance.</p>

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

<p>Motion to settle account of receiver of rents in foreclosure.</p>

<p>Foreclosure — mechanics’ liens — when order to put purchaser in possession denied — lease — Code Civ. Pro. § 1675.</p> <p>Where a tenant in possession prior to the commencement of an action to foreclose a mechanic's lien upon the premises is not made a party to the action, and such possession is continuous, the tenant is not bound by the judgment entered in the action.</p> <p>Even though the tenant’s lease is not recorded possession thereunder is notice to the purchaser at the sale in foreclosure, and a motion to vacate an order denying the purchaser’s motion for an order to put her in possession of the premises, made under section 1675 of the Code of Civil Procedure, will be denied.</p>

<p>Action to recover a penalty.</p>

<p>Wills — when remainders vest — estate in remainder “ after the fulfillment of all the duties and trusts/’ etc.— intention to limit quantum of estate and not to postpone vesting — when trusts are independent and not interdependent. Trusts — deed in nature of marriage settlement — reversion as part of grantor’s residuary estate.</p>

<p>Motion for the appointment of a referee.</p>

<p>Action in partition.</p>

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

<p>Action in partition.</p>