Volume 112 — New York Miscellaneous Reports

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

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

<p>Negligence — when error of judgment not contributory — fire wardens — when claim allowed — Laws of 1919, chap. 568.</p> <p>Where a person is placed in an emergency an error of judgment is not contributory negligence.</p> <p>Pursuant to an enabling statute (Laws of 1919, chap. 568) jurisdiction was conferred upon this court to hear, audit and determine the claim herein for personal injuries alleged to have been sustained by the claimant, a hard-working, capable farmer about fifty years of age, while fighting a forest fire by reason of being surrounded by fire and severely burned and permanently injured while in the employ of the state as a fire warden and in the course of such employment. Upon the hearing of the claim it appeared that claimant’s ability to labor has been greatly diminished, his eye-sight has been seriously affected and the back of his hands and his face are disfigured and scarred. Held, that considering the age of claimant, his circumstances in life, his earning power before he was injured and the diminution thereof, an award of $4,000 would be fair and the claim in that amount is allowed.</p>

<p>Claims — against state of New York — when dismissed — negligence — damages — evidence.</p> <p>On the morning of May 30, 1917, claimants left Buffalo in an automobile for a day’s outing. Arriving at Rochester late in the afternoon they proceeded to Irondequoit Bay where they had dinner, and returned to Rochester, and proceeding westerly along Main street to Plymouth avenue drove to the left about three hundred feet and into the Erie canal at about nine p. M., at which time the canal bridge, which is at right angles with said avenue, was hoisted to permit the passage of a number of boats, one of which became grounded and considerable- delay was occasioned in floating it. It being a holiday, the travel and trafile upon the street was unusually large and because of the delay of raising the bridge, a great number of people had gathered on each side of the canal. There was a garage on each side of the avenue immediately adjoining the canal, the lights in each garage were lit, and the usual street lights were brightly burning. The driver of the automobile drove along the avenue at an ordinary rate of speed until he arrived at the canal, and without stopping continued very slowly on his way until the entire party was precipitated into the water. On the hearing of the claim for damages on the ground that the state was negligent in failing to properly guard and protect the opening to the approach of the canal while the bridge was hoisted, there was no evidence to show either what is usually done in similar situations or how streets having hoist bridges are guarded. Held, that it was not for the court to say what kind of precautions, guard or method the state should adopt, but to determine whether it had adopted the ordinary precautions usually taken.</p> <p>The testimony on the part of claimants was that there was no watchman at the place of the accident, while the testimony on the part of the state was that there was. Held, that applying the rule that negative testimony as against positive testimony does not suffice to carry the case to the jury it must he held that claimants had not sustained the burden of establishing their claim by a preponderance of evidence and that it will be dismissed on that ground.</p>

<p>Claim arising ont of Barge canal contract.</p>

<p>Application by executors to have fixed and determined the fees of an attorney and to enforce a lien therefor.</p>

<p>Transfer tax — what proper deductions — trusts — wills — evidence — executors and administrators — Code Civ. Pro. § 2664-a.</p> <p>The rule of law that a trustee should not invest fiduciary funds in his own name and that he should not mingle trust funds with his own or those of another trust, are strengthened by section 2664-a of the Code of Civil Procedure making such acts criminal.</p> <p>Where in a transfer tax proceeding the proof does not show that real estate held by decedent at her death in her own name was purchased with trust funds of the estate of her deceased husband, of which she was the sole trustee, such real estate will not be presumed to be held in trust for the legatees under the will of the husband.</p> <p>When decedent took over her husband’s estate in 1891 she was possessed not only of a large amount of cash but had a separate income from certain real estate of which she was the owner. The surplus income of her share in her husband’s estate and other funds went with any moneys that might have been used from the trust estate into the properties held by her at her death in 1917. She was singularly successful in her business operations and died intestate survived by two sons and a daughter, her only heirs at law and next of kin. Upon an application to exempt from a transfer tax, the property of which she died seized and possessed, held, that while as executrix she was liable for the principal of the estate of her deceased husband, she was not liable for the profits realized on investments of $80,000 of trust funds in the real estate purchased in her own name, and that the amount of any debt due from her estate to the estate of her deceased husband and to the legatees under his will, is a proper deduction herein.</p>

<p>Evidence — witnesses — wills — trial — undue influence — Surrogates’ Courts — when motion to set aside verdict and for a new trial denied.</p> <p>Testimony of disinterested witnesses that decedent, for long periods during the ten years next preceding the making of her alleged last will, had been addicted to the excessive use of intoxicating liquors and that when they failed to have an effect upon her, she drank spirits of ammonia, veronal and other drugs, is sufficient to support a finding of a jury that at the time of the making of said will she was of unsound mind, and a motion to set aside a verdict on that issue and for a new trial will be denied and a decree refusing probate entered.</p> <p>The finding of the jury that the alleged will was procured by undue influence exercised by the proponent, with whom for several years before decedent’s death she had had meretricious relations, held to have been sustained by more than a fair preponderance of evidence.</p> <p>An order of the Supreme Court made pursuant to the Insanity Law eleven years prior to the death of the alleged testatrix was prima facie evidence of her insanity at the time of the entry of said order.</p>

<p>Transfer tax — what not subject to — corporations — what are not ‘ ‘ investments ’ ’ — Tax Law, §§ 221-b, 330.</p> <p>Where the principal and interest of certain seven per cent cumulative income bonds of a corporation owned by decedent at his death are payable only out of the assets of the corporation remaining after the payment of all other indebtedness they, instead of being a debt due from the corporation, are really preferred stock, and, considered in connection with a trust agreement under which they were issued, and by which decedent agreed to pay to the corporation a certain sum within two years from the date of the agreement, are not “ investments ” as defined by sections 221-b and 330 of the Tax Law and are not subject to a transfer tax under the former section.</p>

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

<p>Summary proceedings — monthly tenant — statutes — Code Civ. Pro. § 2231, subd. 2-a, added by Laws of 1920, chap. 139 — Laws of 1920, chap. 209.</p> <p>While subdivision 2-a of section 2231 of the Code of Civil Procedure, added by chapter 139 of the Laws of 1920, provides that the petitioner must allege as well as prove " that the rent of the premises * * * is'no greater than the amount paid by the tenant for the month preceding the default * * * or has not been increased more than ” etc., the word “ or ” will not be changed to “ and,” such alteration not being essential to carry out the purpose of the statute, and a petition alleging one of the alternatives is sufficient.</p> <p>Whether the increase in rent large or small is unjust and unreasonable and the agreement to pay an increased rental oppressive, is a question of fact, the burden of proof shifting according to the amount of increase.</p> <p>The only way the tenancy of a monthly tenant can be terminated and the landlord regain possession of the premises in the absence of an agreement to pay more rent, is a default in the payment for the month he holds over of the same amount of rent paid the preceding month, or a compliance with chapter 209 of the Laws of 1920, and simply notifying the tenant that the rent has been increased, and asking him to move if he does not want to pay the rent, or that summary proceedings will be commenced if the increased rent is not paid, is not a compliance with the statute, and the proceedings will be dismissed.</p>

Appeal by landlord from a final order of the Municipal Court of the city of New York, borough of Brooklyn, seventh district, dismissing his petition in summary proceedings.

<p>Statute of Frauds — when must be pleaded as a defense — sales — contracts — memorandum — Personal Property Law, § 85(2).</p> <p>Only when a complaint upon a written agreement for the sale of goods for the price of fifty dollars or more shows that the contract sued on is within the Statute of Frauds or when the complaint fails to show whether the contract is valid or invalid must the statute be pleaded as a defense.</p> <p>Where a complaint pleads a contract that would be valid under the Statute of Frauds the plaintiff cannot succeed if the memorandum of the agreement does not conform to the statute, although the defendant has not pleaded it.</p> <p>The goods being standard articles sold generally in the trade are not within the exception covered by subdivision 2 of section 85 of the Personal Property Law, and the statute applies.</p> <p>Where the printed firm name of the defendants appears at the top of a written memorandum! of an agreement for the sale • of goods by them for the price of fifty dollars or more there is a sufficient signing within the meaning of the Statute of Frauds though the memorandum does not contain any signature of the defendants.</p>

<p>Appeal by plaintiff from a judgment rendered in the Municipal Court of the city of New York, borough of Brooklyn, fourth district.</p>

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Richmond, second district, entered in favor of the plaintiff after a trial before the court without a jury.</p>

Appeal by the defendant, tenant, from a final order of the Municipal Court of the city of New York, borough of Brooklyn, seventh district, in favor of the plaintiff, landlord, after a trial before the court without a jury.

<p>Workmen’s Compensation Law, §§ 13, 29 — actions — negligence — when judgment affirmed.</p> <p>The Workmen’s Compensation Law does not give an employer a right of action against the wrongdoer who has injured an employee of said employer except he acquire such right from the injured employee by paying compensation under the provisions of section 29 of the statute.</p> <p>An action by an employee of plaintiff, who was injured in the performance of his work through the negligence of the defendant, was compromised and settled without the consent of the employer, who was a self-insurer under the Workmen’s Compensation Law. In this action by the employer against the defendant to recover the value of medical attendance furnished to the injured employee under section 13 of the Workmen’s Compensation Law, which plaintiff had paid, a judgment in favor of defendant will be affirmed.</p>

<p>Appeal from an order of the Municipal Court of the city of New York, borough of Brooklyn, third district, which denied plaintiff’s motion for an order directing the clerk of the Municipal Court to file and enter in his office the judgment rendered in the action on June 17, 1919, and also directing said clerk" to file copies of the pleadings and papers in place of the originals, which had been lost.</p>

<p>Appeal by the landlord from an order of the Municipal Court of the city of New York, borough of Queens, fourth district, granting a stay of the issuance of a warrant in summary proceedings to recover the possession of real property.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, fifth district, in favor of the plaintiff for the sum of $1,106.25.</p>

<p>Master and servant — negligence — automobiles — when hirer of automobile not liable for negligence of chauffeur — contracts — appeal.</p> <p>Where upon the trial of an action to recover damages to plaintiff’s automobile, the trial justice, though he found as facts that the driver of defendant’s automobile truck at the time of its collision with plaintiff’s ear was careless and that his carelessness was the sole proximate cause of the accident, with resulting damages to plaintiff in a certain sum, directed a verdict for the defendant solely on the ground that Ms driver, being temporarily loaned or hired out to a tMrd person whose servant he was for the time being, defendant was not liable. The record was barren of any evidence that the third person had any control over defendant’s truck aside from the fact that he was on it with the driver, and that the goods in transit thereon were owned by a firm with whom the third person had contractual relations. Meld, that as it did not satisfactorily appear that the defendant surrendered full dominion and control of both his truck and his driver to the third person, the judgment will be reversed and judgment rendered in favor of plaintiff for the sum found by the trial court, with costs.</p>

<p>Domestic Relations Law, § 5(3) — when motion for judgment on the pleadings denied — divorce — marriage.</p> <p>The omission of the term “half hlood” from section 5(3) of the Domestic Relations Law shows that the prohibition therein contained is not extended to relatives of the half blood.</p> <p>Therefore, in a wife’s action for divorce, it is no defense that the parties are niece and uncle of the “half blood” and defendant’s motion for judgment on the pleadings on the ground that the marriage was incestuous and void under section 5(3) of the Domestic Relations Law, will be denied.</p>

<p>Action to recover amount" paid on certain checks.</p>

<p>Motion to compel acceptance of service of amended answer.</p>

- This is an application to confirm the report of commissioners in a proceeding to acquire title to the property rights of the owners, and the only matter in dispute is the question of whether the attorneys for the different owners are entitled, under the provisions of section 3372 of the Code of Civil Procedure, to a trial fee of thirty dollars as for a trial of an issue of fact and ten dollars as for a trial occupying more than two days.

<p>Demurrer to complaint upon the ground that it does not state facts sufficient to constitute a cause of action.</p>

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

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

<p>Transfer tax — federal inheritance tax not deductible — nonresidents — wills — trusts — decedents ’ estates.</p> <p>Where in a transfer tax proceeding a deduction of the amount of certain notes made by the husband of decedent and indorsed by her for discount, is claimed to be erroneous, and it appears that he was merely the accommodation maker, the matter will be remitted to the appraiser for evidence that decedent received the proceeds of the note and that her estate is liable thereon.</p> <p>Where the property left in this state by decedent, who was a non-resident, consists of real estate, tangible personal property and non-taxable intangible property, the amount of her debts to New York creditors is a proper deduction from the real estate.</p> <p>In fixing the value of an estate for the purpose of a transfer tax no part of the federal inheritance tax is deductible as an expense of administration, even though a part thereof was allowed, as such an expense, in the state where decedent resided.</p> <p>As the executors who by the will were given a power of sale must necessarily dispose of some of the real estate to pay debts and expenses of administration the amount of their commissions is properly deductible, but no trust being created by the will which gave a life estate with remainders over, trustees’ commissions are not deductible.</p>

<p>Summary proceedings.</p>

Appeal by landlord from final order in summary proceedings entered on verdict directed by the Municipal Court of the city of New York, borough of Manhattan, ninth district, in favor of Badish and Holt, alleged under-tenants.

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

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of defendant; and. from an order denying plaintiff’s motion to set aside the verdict and for a new trial.

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

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

Appeal by tenant from final order in summary proceedings which awarded possession to the landlord, after trial in the Municipal Court of the city of New York, borough of Manhattan, ninth district, with a jury.

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

<p>Jurisdiction — Supreme Court — parties — pleading — alien property custodian—“ Trading with the Enemy Act.”</p> <p>The Supreme Court has jurisdiction of an action for the reformation of a contract of reinsurance alleged to have been made by the defendant, a foreign corporation and alien enemy, and it is not necessary to make the alien property custodian a defendant.</p> <p>A demurrer to separate defenses pleading the “Trading with the Enemy Act” and amendments thereto; that before the commencement of the action all the money and property of defendant in the United States had been conveyed and delivered to the alien property custodian, etc.; that the sole remedy of plaintiff was provided by said statute and that the court had not jurisdiction of the subject matter of the action, sustained with leave to defendant to amend its answer.</p>

<p>Constitutional law — constitutionality of Laws of 1920, chap. 282 — Civil Service Law — World War.</p> <p>The statute (Laws of 1920, chap. 282) which declares that a public employee who had secured a place on the civil service eligible list by competitive examination before or while in the military or naval service in the World War shall be preferred for any appointment or promotion thereafter made in such grade in the department in which he shall be employed, is constitutional.</p>

<p>Application for approval of certificate of incorporation.</p>

<p>Contempt — when motion to punish for, denied — husband and wife — jurisdiction — Domestic Relations Law, § 70 — Inferior Criminal Courts Act (Laws of 1910, chap. 659).</p> <p>The only method to compel a father to support his child is found in the Inferior Criminal Courts Act (Laws of 1910, chap. 659) and indirectly by an action for necessaries furnished for the child.</p> <p>.Section 70 of the Domestic Relations Law does not confer power upon the courts to direct a husband to pay a certain sum of money to his wife for the support of their child, nor has the court inherent power so to do.</p> <p>A motion to punish a husband living separate and apart from his wife^ ag for contempt in failing to obey that part of an order made under section 70 of the Domestic Relations Law which required the payment by him to her of money for the support of their child, will be denied on the ground that the court was without jurisdiction to make such direction.</p>

<p>Negligence — contributory — damages — automobiles — street railways.</p> <p>While one by permission of the owner was running an automobile on business of his own, it collided with a street railway car and was damaged. Held, that contributory negligence on the part of the borrower was not imputable to the owner of the car in an action brought by him against the railroad company for damages.</p>

<p>Proceeding upon the final accounting by an administratrix.</p>

<p>Appeal from an order of the City Court of the city of New York, granting defendant’s motion to open his default in answering the complaint, permitting him to serve an answer and vacating the judgment by default and all proceedings taken thereon.</p>

<p>Trusts — savings banks — non-residents — actions — wills — interpleader — residuary estates — judgments.</p> <p>It is well established that by comity between the states the disputed ownership of personal property of a decedent in a sister state is determined by the law of that state.</p> <p>Testator, a Roman Catholic priest, died a resident of Massachusetts in 1907, and, without the knowledge of his two nieces, residents of Ireland, had deposited money in a savings bank in New York city in form of a trust for each. In an action by them against the bank for possession of the moneys the ancillary . executor was substituted as defendant by interpleader. Held, that by comity, the law of Massachusetts, under which the moneys fell into the residuary estate, which was given by the will to the bishop of the diocese of which testator had been a priest, was controlling, and judgment granted in favor of the defendant for a dismissal of the complaint but without costs.</p>

<p>Wills — construction of — trusts — residuary estates — pleading — Statute of Distribution — intestacy — executors and administrators.</p> <p>When a trust estate is created by a will with income to the use of a life beneficiary with remainder to his or her issue, and he or she dies without issue, it will be presumed that the testator died intestate as to the trust estate and it passes to his next of kin as of the time of his death under the Statute of Distribution even when the life tenant is the only next of kin.</p> <p>A father by will gave the income of his entire estate, which he directed to be divided into four equal parts, to his wife, son and two daughters for their respective lives, and at the death of each their children were to take the residuary estate absolutely. The wife having died and also the son and one daughter, neither of whom left issue, the other daughter as sole heir-at-law and only next of kin took three-quarters of the estate and continued to receive the income of the remaining quarter, pursuant to her father’s will. Held, that she having died childless, the corpus of the trust estate vested in her as of the time of the death of her father, and that her last will disposing of the same operated to defeat the Statute of Distribution.</p> <p>The complaint, therefore, in an action brought by her administratrix to determine the ownership of the one-quarter part of her father’s estate left in trust for her benefit during life and which her executors had taken possession of, upon the claim that she could not dispose of said property by will but that it must go to her next of kin under the Statute of Distribution, is subject to demurrer.</p>

<p>Partition — actions — wills — vested remainders — life estates.</p> <p>A will directed payment of the rents, issues and income of certain premises to the daughter of testator for life, payment to be made only upon her sole and separate receipt, and upon her decease without issue her surviving, the premises were devised to the two sons of testator. The will further directed that in case of the decease of either of testator’s children leaving issue, such issue should take and receive the same under the will as their deceased parents would have taken if living. Testator died leaving him surviving two sons and a daughter, and the death of one of the sons who left a last will which was admitted to probate was followed by the death of the daughter unmarried and without issue. In an action for partition held, that under the father’s will the son who died took a vested remainder in the premises, which was not divested by his death, and that his daughter, who survived both him and the life tenant, took the share which her father would have taken if living at the expiration of the life estate.</p>

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

<p>Action to compel the defendant to convey real estate.</p>

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

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

<p>Action by brokers to recover commissions for procuring a lease.</p>

<p>Habeas corpus proceedings.</p>

<p>Injunctions — when cancellation of certificates of advanced registry of cattle should be restrained — affidavits — evidence — fraud — Membership Corporations Law.</p> <p>A person whose property rights are involved should be confronted by the witnesses against him and have an opportunity to cross-examine them. (P. 280.)</p> <p>After official tests for determining the amount of milk and butter fat produced by certain cows belonging to a herd of pure bred Holstein-Friesian cattle, of which plaintiff was the owner, a number of these cows were accepted for advanced registry by the defendant Holstein-Friesian Association of America, a domestic membership corporation. Certificates in respect thereto were issued as provided by the rules of the association, and the name of each particular animal accepted was included in the official herd book, thus giving to such animal a substantially enhanced value. In an action to restrain the cancellation of said certificates because of the alleged fraudulent practice of a former herdsman of plaintiff in making the tests, the herdsman made an affidavit that his former statements made to defendant’s executive committee in reference to cows tested by him at plaintiff’s farm for advanced registry, were untrue. Meld, that the cancellation of the certificates should be restrained until after plaintiff had notice of and an opportunity to be heard upon the charge of fraudulent tests.</p> <p>Where during the investigation by defendant’s executive committee as to whether said certificates had been obtained by fraud in the making of the tests, various statements were made by defendant’s president and by members of the executive committee as to the advisability of cancelling some or all of the certificates based on tests in which said herdsman had a part, fair play requires that no director who is a member of the executive committee, to whom the plaintiff objects, shall vote, nor should the president, against the objection of plaintiff preside or have the right io a deciding vote in case of a tie.</p>

<p>Injunctions — when plaintiff will be granted, an injunction pendente lite — actions—newspapers.</p> <p>A prayer lor a general injunction, without specifying particular acts sought to be restrained, will not be granted. (P. 286.)</p> <p>In an action by the proprietor and publisher of the Buffalo Commercial to restrain the defendants, who are the proprietors and managers of all the other daily newspapers in the city of Buffalo published in the English language, from refusing to sell their newspapers to persons who may deal in and handle plaintiff’s newspaper and from inducing news boys or news men to refuse to handle or deal in plaintiff’s newspaper, the plaintiff will be granted an injunction pendente lite.</p>

<p>Discovery — when surrogate has no jurisdiction to try questions of title — Code Civ. Pro. §§ 2675, 2676.</p> <p>The mother of decedent purchased certain household furniture which was used in the household of the decedent until her death, when her husband, prior to his appointment as administrator, put it in a storage warehouse in his wife’s name and delivered a writing to one of the respondents directing the storage warehouse company to deliver the furniture to the mother of decedent. After the storage warehouse company had refused to deliver the property to the administrator he brought a discovery proceeding and claimed that the writing was obtained by duress. The parents of decedent claim that in consideration for the writing they gave petitioner a written agreement to put a headstone at his wife’s grave, but this petitioner denied. Held, that the surrogate has no jurisdiction to try questions of title between conflicting claimants, particularly where the ultimate purpose of the statute, namely, to effect delivery of the property, cannot be the result of the determination. Code Civ. Pro. §$ 2675, 2676. (P. 291.)</p>

<p>Discovery proceeding.</p>

<p>Executors and administrators — when application for revocation of letters of administration granted — marriage — husband and wife—divorce.</p> <p>A short time after decedent had married Ms first wife in the state of Connecticut, which grants divorces against non-resident defendants and in turn recognizes those obtained in foreign states, they separated under circumstances indicating abandonment on his part, but she remained and still is a resident of that state. Later he became a resident of CMcago, 111., and was there granted a decree of divorce on the ground of desertion, though the summons was served by publication and the defendant did not appear in the action. Thereafter he and Ms second wife whom he married in the state of Massachusetts became residents of the state of New York, where he died survived by said wife and their infant daughter. Held, that an application by the second wife for the revocation of letters of administration on the estate of the decedent granted to the first wife, should be granted.</p>

<p>Wills — construction of — trusts — codicils — devise — residuary estates.</p> <p>Where there is no legal devise or bequest of a part' of the estate to which an heir or next of kin would otherwise be entitled, he is not cut off by an expression in the will to that effect. (P. 303.)</p> <p>The will of testatrix divided her residuary estate into seven equal shares, giving one to each of five children arid two to her daughter E. One of such shares was bequeathed to the executors in trust for one of the sons of testatrix who predeceased her intestate and without issue, with direction to invest the same and pay the income to said son for life and upon his death to transfer the principal of the trust fund to such one or more of the lawful issue of testatrix, in such shares, at such time or times and in such manner as the son might by will direct or appoint. The will of testatrix contained no provision as to the disposition of the share of any life beneficiary who shall predecease the testatrix and without issue. Held, that the children of another son of testatrix, who survived her, took the share of their deceased uncle though by the will of the testatrix no provision was made for them. (Pp. 301, 302.)</p> <p>Where by a codicil the power of appointment given to the daughter E. was limited to one share, the other share given to , her reverted to the residuary estate of testatrix and must be distributed in equal parts among the residuary trusts, including that of E. (P. 304.)</p>

<p>Objections to executors’ accounting.</p>

<p>Objections to the account of executors and trustees.</p>

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

<p>Surrogates ’ Courts — accounting — trial — set off — legacy — jurisdiction — Code Civ. Pro. §§ 2490(11), 2510, 2735.</p> <p>Under sections 2490(11) and 2510 of the Code of Civil Procedure all questions of title to and quantum of a legacy or a distributive share of an estate are triable in the Surrogate’s Court, and under section 2735 of said Code the surrogate must direct payment and distribution to those entitled, according to their respective rights.</p> <p>Upon the Judicial settlement of the accounts of an administrator with the will annexed the court has jurisdiction to hear and determine the claim of the administrator that a non-resident son of the decedent has in his possession in another state a portion of the estate which though not turned over to the administrator should be taken into consideration upon the accounting, and if the facts justify, to set off or charge the same against the distributive share of the son.</p>

<p>Certiorari — when motion for a restraining order denied — board of appeals — Labor Law, § 20 — Building Code, city of New York, § 195.</p> <p>Where the board of appeals by a vote of four to three has decided that the superintendent of buildings in making an order commanding relator to cease the erection of steel frames upon a building in the course of construction, beyond three stories in advance of that part of the steel frame in which concrete filled arches had been placed, has acted wisely and within his discretion, a motion for a restraining order in a certiorari proceeding to review the decision of the board of appeals will be denied. Labor Law, 6 20; Building Code, city of New York, $ 195.</p>

<p>Damages — liquidated — lease—city of New York — ferry companies — bonds.</p> <p>The city of New York entered into a lease with the defendant for the operation of certain ferries for a period of ten years. Defendant was obligated to continue operation of the ferries until March 15, 1921, but ceased operating them on June 1, 1918. As collateral security to a bond of $50,000 given by defendant to guarantee the continuance of the ferry service in accordance with the terms of the lease defendant deposited with the comptroller of the city of New York corporate stock of said city of the face value of $53,000. The plaintiff claims a lien on the security deposited with the comptroller in the amount of $50,000 as liquidated damages for the discontinuance of the ferries by defendant before the expiration of the term of its lease, in addition to the amount due it from defendant as rent. Meld, that although the bond states that the collateral is held “ as security for the faithful performance of the covenants and conditions of said lease as modified” and ordinarily such language is indicative of a penalty rather than liquidated damages, the loss to the public in this instance, however, cannot be regarded as merely nominal, as the ferry service having been abandoned by the defendant nearly three years before the expiration of the term of the lease the public were deprived of the one object for which the lease was made, and the sum of $50,000 is not an unreasonable amount to fix as liquidated damages. Judgment accordingly.</p>

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

<p>Specific performance — lease — contracts — actions — equity — estoppel.</p> <p>Plaintiff had a lease of defendant’s property with an option to purchase. Shortly after this lease was executed the parties agreed to the cancellation of the option to purchase, and for the making of a new lease extending the term, in consideration of defendant’s making material and costly improvements. Defendant signed one copy of this agreement and submitted the other copy to plaintiff for his signature, but plaintiff never signed it. Defendant spent large sums of money in improving the property and now when plaintiff’s original lease is about to expire he brings an action for specific performance under it. Defendant counterclaims, seeking specific performance of the agreement modifying the lease, jHeld, that there is no equity in plaintiff’s claim, and that he is estopped from asserting it, although his lease is under seal; that where the owner seeks to enforce an oral agreement it is no defense to the lessee that the agreement was not in writing; that it was not necessary that both copies of the modified lease should be signed by the defendant; that defendant’s only relief is in equity and that she is entitled to judgment for specific performance of the modified lease.</p>

<p>Injunctions — when motion for a preliminary injunction granted — carriers — labor unions — corporations — ships and shipping — conspiracy — United States Shipping Act, approved September 2,1916 — interstate commerce — United States Revised Statutes, § 5440.</p> <p>Plaintiff is a foreign corporation engaged in business as a dealer in lumber, and in all its sales contracts to deliver lumber at points designated by the purchasers. It delivers the lumber in trucks driven by its regularly employed chauffeurs and teamsters. In its export trade it either acts as shipper in securing transportation hy water or the purchaser acts as the direct shipper but in either case the lumber is hauled to the piers of the defendants’ steamship lines by plaintiff’s own employees, who are selected by it regardless of union affiliations. Since a strike by its employees for a closed shop and union conditions, which plaintiff was unwilling to grant, it has been impossible for plaintiff to secure union truckmen to work for it or to handle its material when employed by anybody else, and the defendants agreed among themselves not to receive plaintiff’s lumber at the piers or transport it until such time as plaintiff will consent to the closed shop and union regulations. Lumber offered by delivery to steamship lines where space had been secured was refused. Steamship lines would refuse to sell space to the plaintiff and subsequently sell it to other shippers. Held, that the affidavits on a motion for an injunction pendente lite presenting a combination and conspiracy between the carriers and the unions to violate the provisions of the United States Shipping Act, approved September 2, 1916, the purpose of which inter alia is, "to regulate carriers by water. engaged in foreign and interstate commerce of the United States,” and also to violate section 5440 of the Revised Statutes of the United States, the injunction will be granted, it appearing that the plaintiff is being irreparably injured in its property rights by acts done by the defendants in furtherance of such conspiracy in discriminating against plaintiff’s freight. Common carriers owe an affirmative duty to perform impartial service,' and it is their duty to serve the plaintiff and not discriminate against it. Employees of common carriers are also bound to serve the public indiscriminately. The law cannot force a man to remain in the service of the public, but while so employed he is bound by public statutes as well as his employer. He must serve all persons alike or get out of the transportation business.</p>

<p>Judgments — when court has no power to render — continuing action against representatives of deceased defendant—personal service necessary — motions and orders — appearances.</p> <p>An order continuing an action to enforce a stockholders’ liability against the executors of an answering defendant, provided that the summons and complaint be amended so as to make each of said executors parties defendant without prejudice to proceedings already had. This order, which recited proof of due service of the affidavit and order to show cause and that no one had appeared in opposition, was served by mail upon the executors, and the judgment which was entered against them after a trial of the action recited their appearance though neither the summons nor the pleadings were ever actually amended by substituting the names of the executors in place of the name of their testator. Upon granting an order striking out the recital of the executors’ appearance, their names as party defendants and vacating and setting aside the judgment as to them, held, that the failure to personally serve either a supplemental summons or the order granting a continuance of the action was fatal, as without such service the executors were not before the court and it had no power to render the judgment.</p> <p>While the motion was proper practice and the order signified the court’s consent to the continuance of the action against the executors it was still incumbent upon the plaintiff to duly and legally bring the substituted parties before the court, and the service of the order by mail was insufficient for that purpose!</p>

<p>Motion to confirm referee’s report in an action for an annulment of marriage.</p>

<p>Certificate of reasonable doubt—when application for, granted — new trial — criminal law—Penal Law, § 1897.</p> <p>While defendant was examining a shining object which she had picked from the gutter, a stranger who saw her pick it up recognized it as a gun and while attempting to take it from her a police officer arrested them both. On the hearing before the magistrate the stranger was discharged and the defendant held for trial on a charge of a violation of section 1897 of the Penal Law. At the trial her request to have the stranger called as a witness in her behalf was denied and she was upon conviction sentenced to the Bedford Reformatory, where she may be confined for three years. Held, that a motion for a new trial having been denied by a divided court, her application for a certificate of reasonable doubt will be granted.</p>

<p>Actions — when motion to restore will be granted — damages — negligence — judgments — federal statutes.</p> <p>Where the complaint in a common law action, to recover damages for negligently causing personal injuries, was dismissed upon the ground that a federal statute, since declared unconstitutional, null and void, provided another and exclusive remedy, a motion to vacate the judgment of dismissal and restore the action for trial on the merits, will be granted in the furtherance of justice even though the time to appeal from the judgment has expired.</p>

<p>Action in foreclosure.</p>

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

Motiok by George Bullock, as receiver of the above-named traction company, for leave to abandon the operation of all lines of said company within the state of New York.

<p>Negligence — when state not liable for damages — bridges — highways — Highway Law, §§ 2, 74.</p> <p>At a point on the unguarded northerly side of the approach to the eastern end of a bridge which, because its span was more than five feet, was not a part of the highway as defined by section 2 of the Highway Law, claimant’s testator, who was driving a horse and cutter between half past eleven o’clock on a March night and half past five the next morning, was with his horse and cutter precipitated over the edge of said approach into the creek and drowned. Held, that the approach to the bridge was a part thereof and that as under section 74 of the Highway Law all damages resulting from defects in the bridge caused by the neglect of the superintendent of highways of the town in which the bridge lies, the town and not the state was liable, therefore a claim for damages against the state for causing said death, based upon the alleged negligence of the state commission of highways for failure to provide a suitable barrier at the point where the accident happened, will be dismissed.</p>

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

<p>Domicile — -wills — transfer tax — citizens.</p> <p>The evidence taken in a transfer tax proceeding upon the question of the domicile of decedent at the time of his death, who though born in Cuba beame a naturalized citizen of the ' United States in 1871, considered, and held, that though he died in Cuba his last domicile was in the state of New York.</p>

<p>Insurance (fire)—standard form — co-insurance clause—ware-housemen— Insurance Law, § 121, added by Laws of 1917, chap. 440, § 3. •</p> <p>Plaintiff contracted to pay for merchandise by sight draft against bill of lading. Upon delivery to warehouse defendant accepted in payment a thirty day draft. Held, that title passed to plaintiff upon delivery to warehouse.</p> <p>The standard form of fire insurance provided in the Insurance Law, section 121, as added by section 3, chapter 440 of the Laws of 1917, makes no provision for a co-insurance clause, and such a clause is inconsistent with its conditions.</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 the plaintiff upon an agreed statement of facts.

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

• Appeal by plaintiffs from a judgment of the Municipal Court of the City of New York, borough of Manhattan, ninth district, in favor of the defendant, entered upon the verdict of a jury.

Appeal by plaintiffs from a judgment of the City Court of the city of New York in favor of the defendant, dismissing the complaint at the close of the whole case, after trial by the court with a jury.

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

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, in favor of defendant, upon the direction of a verdict by the court.

Appeal by tenants from a final order in dispossess proceedings entered in the Municipal Court of the city of New York, borough of Manhattan, first district.

Appeal by defendant from a judgment of the City Court of the city of New York, in favor of plaintiffs, entered upon the verdict of a jury.

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

<p>Evidence — admissibility of telephone conversations — stockbrokers.</p> <p>In an action against stockbrokers arising out of a purchase of corporate stock for plaintiff’s account which he claimed was unauthorized, defendants, in support of their contention that plaintiff’s order to purchase was given by him over the telephone to their office manager, are entitled to show that in such conversation plaintiff had instructed defendants’ manager to sell other stock held by defendants in plaintiff’s account and with the proceeds thereof to purchase the stock concerning which the action was brought, and the exclusion of such testimony tested by the rules regarding the admissibility of telephone conversations is prejudicial error for which a judgment in favor of plaintiff will be reversed and a new trial granted.</p>

Appeal by plaintiff from a judgment of the City Court of the city of New York, in favor of the defendants, and from an order denying plaintiff’s motion for a new trial.

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

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, in favor of defendant dismissing plaintiff’s case at the close thereof, after a trial by the court and a jury.

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

Action to construe the 17th paragraph of the will of Benjamin Nathan, deceased, and to pass the account of the plaintiff as trustee under said will.

<p>Mechanic’s lien — filing of — foreclosure — when notice of lien declared invalid — evidence — Lien Law, § 12.</p> <p>A subcontractor’s notice of lien which, instead of reciting the date when the amount claimed is due, states that under the lienor’s contract the amounts claimed were payable to it within ten days after the principal contractor should be paid, and upon information and belief that he had been paid nothing, is only prima facie sufficient, and where the trial discloses such long-continued neglect of the obvious and reliable source of inquiry in favor of one who might have motive to conceal and deceive the notice of lien will be declared invalid. (P. 514.)</p> <p>Where a subcontractor’s notice of lien filed on July 9, 1919, was discharged by a surety company bond within six days and nothing further was done concerning it until the present action to foreclose it was commenced sometime after October 6, 1919, all rights enforcible by the lienor against the surety company are lost and the lien discharged by lapse of time. (Pp. 514, 515.)</p> <p>Where several notices of lien neither claimed payment due for nor recited any “ materials actually manufactured for but not delivered to such public improvement ” (Lien Law, § 12), a claim that the notice of lien must state that no such materials were so manufactured, on the theory that a statutory requirement is otherwise disregarded, cannot be sustained. (P. 516.)</p> <p>Where of two notices of lien filed by the same lienor for different amounts, the second included the claim under the first notice, together with a claim for work and material subsequently furnished, and the proof shows that materials made had been delivered but not installed and that the title thereto was still in the lienor, the second notice of lien is invalid but the first remains unaffected. (P. 516.)</p>

<p>Jurisdiction — of Court of Claims — claims — municipal corporations— towns — highways — Laws of 1918, chap. 657.</p> <p>The rule that money paid under a mistake of law may not be recovered back does not apply to a municipality or other public body. (Pp. 520, 521.)</p> <p>This rule of non-application is based upon the principle that such payment is not voluntarily made by the municipality but by its agent in excess of his authority and in defiance of the rights of the municipality. (Id.)</p> <p>The enabling statute (Laws of 1918, chap. 657), while creating no liability, confers jurisdiction upon the Court of Claims to hear, audit and determine the claim of the county of Cayuga against the state for moneys alleged to have been paid by the county for road construction in certain eases where it is alleged that the expense thereof was chargeable to the state, and it is no defense that the claim being a public one instead of a private one the court had no jurisdiction, and upon proper proof the claim will be allowed.</p>

<p>Actions for injunctions.</p>

<p>Wills — construction of — intention of testator — trusts—te'tumentary guardians — evidence ■— executors and administrators — when legatees take as individuals and not as 1 ‘ adopted children.”</p> <p>An unmarried testator who had taken two children about five years of age from a home for children, lived about two months after executing his will, drawn by himself, which made provision for his “ adopted children.” He never legally adopted either of them nor did he change or revoke his will, the principal purpose and scheme of which was to provide for said children. Held, that his intention was that the children should take legacies under the will as individuals and not in the legal character of “ adopted children.”</p> <p>While extrinsic evidence may be received to show the condition of the estate and the surroundings of the testator as they existed at the date of the execution of the will, it is inadmissible to show testamentary intention.</p> <p>While an attempted appointment of a testamentary guardian for the children was void, the directions of the will as to the property involved constituted a valid power in trust; the executors should act as trustees of the principal sum given to said children and as trustee for the children the one sought to be appointed testamentary guardian should receive from the trustees of the fund the income and apply the same, as well as other property mentioned, to the use of said children as directed by the will.</p>

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

<p>Habeas corpus proceedings.</p>

<p>Certiorari — when motion to dismiss writ of, denied — city of New York—lease — board of appeals — Code of Ordinances as amended in 1918, art. II, chap. 12, § 20 — Greater New York charter, §§ 774, 775 and 776-a.</p> <p>The relator to which a certain wharf property, known as pier 77 North river, had been leased by the city of New York for a term of ten years, availed itself of privileges of renewal, has been continuously in possession of the property and the thirtieth year of its occupancy will expire July 1, 1921. Between January 3, 1893, and May 15th of the same year, relator at its own expense, as covenanted, erected upon the pier a steel frame shed with wooden floors and sides of corrugated iron which it has ever since maintained and occupied. On "April 23, 1919-, acting on reports made by inspectors connected with the bureau of fire prevention, the fire commissioner by his deputy issued three separate orders by which relator was required to provide a separate and distinct dry system of automatic sprinklers throughout the pier, which already was equipped with a fire-fighting apparatus. In addition to the rent of $12,000 a year the expenditure which a compliance with one of said orders would entail would be at least $19,000 and might be more. Upon the expiration of the lease the shed with the sprinlder system, if installed, would revert to and become the property of the city, free of all encumbrances. Held, that a motion to dismiss a writ of certiorari to review the determination of the board of appeals affirming the orders of the fire commissioner and to confirm such determination will be denied.</p> <p>Where in 1918, for the first time, the fire commissioner acquired jurisdiction over the water fronts of the city, a substantial change in the law, the parties, seemingly, could not have contracted with reference to the subject, and, in consequence, the relator cannot be called upon to obey the order of the fire commissioner.</p> <p>Section 20 of article II of chapter 12 of the Code of Ordinances as amended in 1918, read in connection with sections 774, 775 and 776-a of the Greater New York charter, which confers ample power on the fire commissioner in regard to the enforcement of said ordinance, considered, and held, that relator did not come within the purview of said ordinance and that the order of the fire commissioner was invalid.</p>

<p>Motioe" by defendants for judgment upon the pleadings.</p>

<p>Habeas corpus —when writ of, dismissed — jurisdiction — criminal law — indeterminate sentence — Parole Commission Law (Laws of 1915, chap. 579, as amended in 1916), § 9 — Penal Law, §§ 720, 1937.</p> <p>The judges of the Court of General Sessions of the city of Mew York and the justices of the Court of Special Sessions therein have power under section 9 of the Parole Commission Law (Laws of 1915, chap. 579, as amended in 1916) to commit persons under indeterminate sentence to penitentiaries, etc., and section 1937 of the Penal Law is not applicable to persons sentenced by either of said courts under the provisions of the Parole Commission Law. So held on discharging writs of habeas corpus where in one instance the relator is held by virtue of a judgment of said Court of Special Sessions on his conviction for an attempt to commit petit larceny and in the other instance the relator is held by virtue of a judgment of said Court of General Sessions on conviction of an attempt to commit grand larceny in the second degree.</p> <p>The claim of another relator who upon his conviction in said Court of Special Sessions for the misdemeanor of keeping a disorderly house was given an .indeterminate sentence which may last three years, that the court, being without power to impose a definite sentence of three years, it was without power to impose said indeterminate sentence, is without merit.</p> <p>Where another relator convicted in said Court of Special Sessions of annoying persons in a public place by offensive and disorderly acts which are made a misdemeanor by section 720 of the Penal Law, for which no punishment is prescribed thereby and of which said court has jurisdiction, the writ in his ease will be dismissed and the prisoner remanded.</p>

<p>Corporations — when foreign corporation exempt from local taxation on its personal property — taxes—Tax Law, art. 9-a, added by Laws of 1917, chap. 726.</p> <p>Where a foreign corporation having a place of business in this state has paid the corporation income tax for the year 1917, levied pursuant to article 9-a of the Tax Law, added by Laws of 1917, chapter 726, the corporation is exempt from local taxation on its personal property.</p>

<p>Supplementary proceedings — when judgment debtor cannot be compelled to answer questions relating to an invention — patents.</p> <p>The right of an inventor before he lias disclosed his secret is not property in the general sense of the word.</p> <p>Where the examination of a judgment debtor in proceedings supplementary to execution discloses that he claims to have invented some device for sound production to be used in connection with phonographs, and to have constructed some models thereof, but it also appears that he has not obtained any patent for it nor applied for one, and that he has not made public his ideas, he cannot be compelled to answer questions which will reveal the nature of his claimed invention.</p>

<p>Action for the administration of dower.</p>

<p>Summary proceeding under section 57 of the Public Service Commissions Law to enforce the terms of an order made by said commission June 15,1920.</p>

Action for specific performance to compel the defendants to execute and deliver to the plaintiff a deed of a house and lot situated in the town of New Hartford, Oneida county.

The State Bank of Williamson of Williamson, N. Y., was incorporated in 1905 with a capital stock of $30,000. This was increased to $60,000 in 1912 and to $100,000 in 1914. The defendants Brandt and Waters became directors and members of the examining committee in 1905 and the defendant Oheetham became a director and president in 1908 and a member of the examining and discount committees in 1910. The defendant Waters became a member of the discount committee in 1910.

<p>Injunctions — when motion to vacate denied — actions — conspiracy— labor unions.</p> <p>Where in an action for conspiracy all of the defendants are charged therewith, a motion to vacate an injunction as to defendant, with reference to whom no specific tortious act is alleged, will be denied.</p> <p>An injunction against “ all other persons ” without connecting them with the defendants, will be modified by adding after such words “acting in combination or collusion with them 0£ in assertion of their rights or claims.”</p>

<p>New trial—when motion for, on the minutes, denied — trial — evidence — insurance (fire).</p> <p>The appraisal clause in the standard fire insurance policy has no application to a ease where the company denies its liability but applies only where there is a disagreement as to the amount of the loss or damage.</p> <p>Where the evidence as to the amount of loss furnishes a rational basis for a verdict the case should go to the jury, and if it be a reasonable conclusion from the evidence, the verdict should stand, and a motion for a new trial on the minutes will be denied.</p>

This action was brought to recover upon a promissory note payable on demand for $35,000, dated June 29,1912. The action accrued at the date of the note and the six year Statute of Limitations expired on June 29, 1918. The defendant entered the military service June 1, 1918, and was discharged July 10, 1919.

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

<p>Claim for damages for negligence.</p>

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

<p>Executors and administrators — what commissions temporary administrators are entitled to receive — accounting — trusts — negotiable instruments.</p> <p>Temporary administrators are entitled to commissions for receiving, caring for and turning over assets of their decedent’s estate.</p> <p>A number of promissory notes payable to decedent and deposited with a trust company under a trust agreement that they should be payable at its office as they became due, are not a part of the estate “ received and passed over ” to the temporary administrators, and as not only did they not receive the notes but had no right to receive them, because of the trust agreement, they are not entitled to commissions on the value of said notes.</p> <p>Certain other promissory notes payable to decedent being in the possession of the temporary administrators, they are entitled to commissions thereon.</p> <p>The temporary administrators cannot be allowed commissions on real estate even though they were given possession thereof, to collect the rents and preserve the property.</p>

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

<p>Objections to account of executor.</p>

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

<p>Application to revoke letters of administration.</p>

<p>Demurrer to counterclaim.</p>

<p>Action for the enforcement of a restrictive covenant.</p>

<p>Action for the construction of a contract and for an accounting.</p>

<p>Action for libel.</p>