Volume 113 — New York Miscellaneous Reports

<p>Action to recover a savings bank deposit,</p>

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

<p>Judgments—action to recover for personal injuries — appeal — parties — insurance (accident)— nuisance — undertaking — injunctions.</p> <p>Where in an action to recover for personal injuries caused by a fall on an icy sidewalk in front of the premises of the inclividúal defendant, the city was also made a party, the affirmance on appeal of a judgment in favor of plaintiff and docketed against the defendants determines that both participated in the maintenance of the nuisance which caused the accident.</p> <p>A casualty company, in order to protect itself under a policy issued by it to the individual defendant and to stay execution upon plaintiff’s judgment, procured an undertaking on appeal from a surety company. Upon the affirmance of the judgment, the surety company paid the amount of both judgments to the plaintiff in the action and took assignments thereof to itself. In an action brought by the city to determine the equities between the parties and to restrain the collection of the judgments, held, that the plaintiff in this action and the individual defendant in the action to recover for personal injuries, were in pari delicto, and neither was entitled to recover over or to contribution.</p> <p>The undertaking on appeal having been given at the request of the casualty company whatever redress said individual defendant had against it did not inure to the benefit of the plaintiff in the present action but was purely personal to said individual defendant and he alone is entitled to the benefit of the policy for which he paid.</p> <p>The two judgments rendered in the action for personal injuries are valid against the plaintiff in the present action to the extent of one-half of the amount thereof, with interest from the date of entry, and said plaintiff should pay that amount to the defendant surety company but without costs to either party.</p>

<p>Wills — construction of — trusts — residuary estates — remainders — suspension of power of alienation — accumulations — Personal Property Law, § 16.</p> <p>Testator was survived by his widow and three daughters by his first wife, a son by his second wife and by her daughter by a former marriage. All of said children are infants and with the widow are all of the beneficiaries named in the will of testator. Held, that the corpus of a trust fund, the income of which was given to the widow for life with no express bequest of the remainder, passed to testator’s son under the general residuary clause in his favor.</p> <p>Though the testator, in the first paragraph, made a bequest of all his estate to trustees, and the residuary clause is broad enough to include property unbequeathed in other portions of the will, the fact that in some parts thereof he provided for gifts over and did not do so in the third paragraph by which in clear and unambiguous language he made a bequest of a certain sum of money to his step-daughter, indicates that an absolute gift to her was intended.</p> <p>By another paragraph read in conjunction with other provisions of the will the testator intended to separate from the rest' of his estate an amount that would earn thirty-five per cent of the total income of the estate, to be held in one fund for convenient investment and to constitute the principal of separate trusts for each of his three daughters, each trust to continue during the life of each daughter or so long as each • should lead a proper life under proper surroundings. Held, that the trusts in .favor of the daughters were valid and that an attempted disposition of the remainder to the children of said daughters after the termination of the trusts, involving as it does a possible suspension of the power of alienation during lives not in being, was unlawful and the remainders will fall into the residuary estate.</p> <p>A similar provision for the capitalization of twenty-five per cent of the total income of the estate to be held in trust for testator’s son, the income to be applied to his education, support and maintenance until he attains his majority, at which time he is to receive one-third o£ the principal of the trust, is valid, but a direction to accumulate the income for his benefit after he becomes of age is void under section 16 of the Personal Property Law.</p>

<p>Proceeding for registration of title.</p>

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

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

<p>Real property — when application for sale of, denied — life tenants — Real Property Law, §§ 67-71.</p> <p>Unless adults having an estate in reversion or remainder in real estate consent by a writing duly executed and acknowledged, an application by the life tenant for a sale of the property must be denied upon the merits. Real Property Law, §§ 67-71.</p>

<p>Motion to get aside the verdict of the jury.</p>

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

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

<p>Motion by-the city of New York to intervene as party plaintiff in the above entitled action.</p>

<p>Action to enjoin cancellation of policy .and determine the rights of the parties thereto,</p>

Action to determine the validity of certain claims in relation to the contract price for the erection of a city hospital in the city of Buffalo.

<p>Claim for damages for destruction of two wells on the property of claimant.</p>

<p>Appeal from an order in summary proceedings in Justice’s Court, city of Utica, which order awards the possession of the premises in question to the tenant.</p>

<p>Wills — construction of—trusts — corpus — vesting — executors and administrators—issue.</p> <p>A testator who died survived by Ms daughter L. and ten other cMldren gave Ms entire residuary estate to his executors in trust, with the direction for its conversion into cash, and division of the proceeds into as many shares as testator should leave him children surviving and issue of any deceased child and upon the further trust, at the death of his daughters as they should severally die, to pay and assign the share held in trust for their use or the proceeds thereof to their issue absolutely, and if such daughters should leave no issue then to testator’s surviving children and to the issue of any of his children who may have died, such issue to take the share his, her or their parent would have taken if living. The daughter L. died in 1919, more than forty years after her father and without issue; two of her brothers predeceased her, testate, leaving no issue; three other brothers and three sisters predeceased her, testate, leaving issue now living, and one brother and one sister now survive her. Held, that upon her death, the corpus of the trust for her benefit vested in the children of testator, living at that time, and to the issue of those who predeceased her, and distribution will be decreed accordingly.</p>

<p>Claim for damages for destruction of crops growing on claimant’s land.</p>

<p>Claim for damages for personal injuries.</p>

<p>Claims for damages for lands and waters appropriated by the state.</p>

<p>Claims — when contested claims allowed in full — subscriptions — religious corporations — evidence — consideration.</p> <p>An instrument by which the signer agrees to pay a certain sum out of his estate one day after his death, to two incorporated missionary boards of the Methodist Episcopal church, on condition that they secure other subscriptions to the cause of Christian missions, is supported by a sufficient consideration.</p> <p>Where upon the hearing of a contested claim on such a subscription the proof shows that after it was made said board obtained other subscriptions to the cause, the claim will be allowed in full, with costs.</p>

<p>Application for readjustment of tax.</p>

<p>Depositions — when order for examination before trial denied — Surrogates’ Courts — wills.</p> <p>An order for the examination of the proponent before trial of the issues in a contested probate proceeding, denied in the exercise of judicial discretion.</p>

<p>Judgments — when plaintiff entitled to take — corporations — negotiable instruments — pleading — Code Civ. Pro. § 1778.</p> <p>Where in an action brought in the City Court of the city of New York against a domestic corporation upon its promissory note, the answer, not accompanied by an order, permitting the trial of the issues as required by section 1778 of the Code of Civil Procedure, was returned and defendant took no further steps in the matter, the plaintiff is entitled to take judgment at the expiration of six days after the service of the complaint.</p>

<p>Summary proceedings.</p>

<p>Landlord and tenant — when tenant may not acquire title antagonistic to landlord — right of assignee of lease to possession of premises — when summary proceedings between tenant and under-tenant inadmissible in evidence.</p> <p>A tenant may not acquire a title antagonistic to that of his landlord without a prior surrender of the demised premises. (P. 165.)</p> <p>After the owner of the unexpired term of a lease had given to the landlord herein a mortgage as security for an indebtedness upon promissory notes, he assigned the lease subject to the mortgage to the executors of an estate. Both instruments were duly recorded and thereafter said executors, for the purpose of inducing the mortgagee to advance further sums of money and as additional security for the money due under the mortgage, assigned to him the lease subject to a defeasance and reassignments upon payment in full of the total outstanding indebtedness. Held, that until such indebtedness was fully paid and discharged the right of the mortgagee of the lease to possession of the premises was superior to the right of the assignor or of a tenant claiming under an alleged lease from it entered into after the making of the mortgage and the assignment of the lease.</p> <p>After the mortgagee, by virtue of the assignment of the lease, had entered into possession he leased the premises for a term ending February 29, 1920. In a summary proceeding instituted by him to dispossess the tenant and his under-tenants, the making of the lease was admitted as was also the fact that a large part of the indebtedness under the mortgage and assignment of lease remained unpaid, but the tenant produced a lease from his landlord’s assignor, dated January 26, 1915, for a term beginning March 1, 1920, and ending January 31, 1932. Held, that the tenant was not entitled to possession or the right of possession of the premises under his lease from his landlord’s assignor until said landlord had been paid and that the landlord was entitled to a final order awarding him possession of the premises, with a stay of execution of the warrant.</p> <p>Proceedings by the tenant against his under-tenants to recover rent or possession of part of the leased premises, to which the landlord was not a party, did not bind him, and in the absence of privity between him and the under-tenants against whom decision was rendered, such proceedings not being res adjudicata in the present proceeding were not admissible in evidence therein.</p>

<p>Gas companies — legislative control of rates—action to have statutory rate declared confiscatory — subsequent action to enjoin charge in excess of statutory rate — injunction pendente lite.</p> <p>The regulation and control of gas companies, as to their service and rates, is and always has been vested in the legislative, not in the judicial, branch of the government. (P. 169.)</p> <p>In an action commenced by the defendant herein to have the statutory rate of seventy-five cents per 1,000 cubic feet for gas furnished by it to the city of New York (Laws of 1905. chap. 736) and the statutory rate of one dollar per 1,000 cubic feet for gas furnished to private consumers within the section of the city served by defendant (Laws of 1906, chap. 125) declared unreasonable, confiscatory and unconstitutional, an order was granted restraining the enforcement of both statutes and pursuant to said order the defendant for one year from August, 1919, has been charging for all gas furnished one dollar and fifty cents per 1,000 cubic feet. Said action is now ready for trial. Held, that in an action subsequently brought by the city and certain of the private consumers to enjoin defendant from putting into effect a rate of one dollar and seventy-five cents per 1,000 cubic feet, an increase of one hundred and thirty-three per cent over the statutory rate, to the city, and seventy-five per cent to private consumers, the plaintiffs will be granted an injunction pendente lite.</p>

<p>Action in ejectment.</p>

Motion by the defendant for an order sustaining the demurrer interposed by it to the first cause of action in the second amended complaint.

<p>Pleading — partition — incompetent defendant — demurrer.</p> <p>General Rules of Practice, rule 65, as amended in 1910 — partition — separate action for part of land within state — demurrer to defense sustained.</p> <p>A demurrer to a defense in an action for partition that one of the defendants is an incompetent and that no committee has been appointed for him, will b? sustained.</p> <p>Rule 65 of the General Rules of Practice, as amended in 1910, provides that where several tracts or parcels of land lying within this state are owned by the same persons in common, no separate action for a partition of a part thereof shall be maintained without the consent of all parties in interest “or without the special order of the court made on notice to all parties who have appeared in the action to be obtained before application for the relief demanded in the complaint.” Held, that where it is pleaded as a defense that the property of which partition is sought does not embrace all the lands within the state owned in common by the parties, and that they have not consented to the separate partition of the particular property described in the complaint, a demurrer to said defense will be sustained, it appearing that it is plaintiff’s purpose to obtain the special order required by the said court rule.</p>

<p>Injunctions — contracts—demolition and removal of buildings — time essence of contract—unreasonable delay in performance of work — Code Civ. Pro. § 620.</p> <p>Where a contract by which plaintiff, in consideration of the payment of a certain sum of money, gave defendant permission to demolish and remove certain buildings, provides that time is of the essence of the contract and that the work is to be completed within a certain time limit, and it is doubtful whether the parties intended that the title to the buildings should pass until they were removed, the breach of the contract on the part of the defendant not only deprives him of any benefit thereunder but subjects him to an action for damages.</p> <p>Where in an action commenced after the expiration of the time limit of the contract upon an allegation that the defendant is unreasonably delaying the work the court is satisfied that there is a reasonable probability that the allegations of the complaint will be sustained, plaintiff’s motion for an injunction against the defendant interfering in any way with the demolition of the buildings or appropriating or taking away any salvage or property, will be granted upon condition that plaintiff give a bond in accordance with section 620 of the Code of Civil Procedure.</p>

<p>Evidence — ownership — possession of non-negotiable instrument with assignment — exception to rule.</p> <p>The possession of a non-negotiable instrument, coupled with a written assignment to the holder, is evidence of ownership, except where the relations between the alleged donor and donee were intimate and the latter had access to the donor's property. (P. 192.)</p> <p>The exception to the rule applies particularly where the person in possession claiming ownership is the executor or trustee of the person who had owned the property and where the possession of the executor is not shown to have existed prior to the owner’s death. (P. 192.)</p> <p>At the incorporation of “ Huylers,” a certificate for all the ‘ stock was issued to the father of plaintiff in payment of machinery, etc., used by the company and which it had purchased of him. Held, that said certificate, which was signed and filed by the three incorporators and trustees for the first year, of whom plaintiff’s father was one and his son was another, completely defeated the claim of the defendants, that the business originally belonged to the son. (P. 190.)</p> <p>Upon the immediate surrender of said certificate, three certificates were issued, each for an equal number of shares, one to plaintiff’s father, one to his son and one to the other incorporator. In a suit in equity plaintiff claimed that the certificate issued to her father belonged to him at the time of his death, and that subject to the life estate of her mother therein, the shares passed to plaintiff under the residuary clause of her father’s will of which the son was the only acting executor. It was conceded that said shares, which are of great value, are now in the hands of the defendants as executors of the son, and the claim is made that they were transferred to him by his father in his lifetime and that upon the death of the son, they passed to his executors under hi? will. Held, that the facts proved did not justify an inference and finding that .there had been a delivery of the stock by plaintiff’s father to his son. (P. 193.)</p> <p>The present action was commenced thirty-two years after the transaction in relation to the assignment of the stock to the son, and plaintiff seeks to be relieved of the operation of the Statute of Limitations (Code Civ. Pro. § 382, subd. 5) on the ground that she did not discover the fraud until within a few weeks before commencing the action. Held, that under said section of the Code, the burden was upon the plaintiff to show non-discovery of the alleged fraud upon her, and as upon the evidence her claim of lack of knowledge could not be found as a fact, the defendants were entitled to judgment with costs. (P. 194.)</p>

<p>Transfer tax — exemption — bequest for public schoolhouse without state.</p> <p>A bequest to a town in the state of Rhode Island for a public schoolhouse is exempt from the payment of a transfer tax by section 221 of the Tax Law.</p>

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

<p>Trusts—.limited equitable jurisdiction of Surrogates’ Courts — application for payment out of trust funds in excess of the amount allowed by the terms of the trust for the support and education of beneficiaries must be made to the Supreme Court — Personal Property Law, § 17, Beal Property Law, § 62, and Code Civ. Pro. § 2664.</p> <p>Where the will directed the testamentary trustee to keep the entire estate invested until testator’s son was of age and to pay from the net income a certain sum weekly to his mother for her support and for his support and education, and to pay to him upon his coming of age the principal of the trust fund with accumulated income, for his own use, an application for an order permitting the trustee to pay the mother from the income, and if that be insufficient then out of the principal, an amount in excess of that allowed by the trust, should be made to the Supreme Court, and the mother’s application under section 17 of the Personal Property Law, section 62 of the Real - Property Law and section 2664 of the Code of Civil Procedure for such an order will be denied.</p>

<p>Application for an order directing the delivery of property to an executrix.</p>

<p>Landlord and tenant — failure to surrender premises at end of term — summary proceedings — when old tenant liable to landlord for damages for withholding possession — Code Civ. Pro. §§ 2231, 2235.</p> <p>Where a tenant under a lease for a definite term holds over the term without a new agreement, the landlord may treat him either as a tenant or as a trespasser.</p> <p>Where a tenant fails to surrender the premises at the termination of his lease on May 1, 1920, as required by the lease, the landlord under sections 2231 and 2235 of the Code of Civil Procedure may maintain summary proceedings to remove the tenant, even though before the expiration of said lease he had let the premises to another for a term commencing May 1, 1920.</p> <p>Where in consequence of the occupation of the premises by the first tenant for the twelve days next succeeding the expiration of the term, the new tenant was unable to get into possession and his lease specifically defers payment of rent until he obtains possession, the landlord, who was successful in a summary proceeding against the first tenant, is entitled to recover against him damages for the loss of the reasonable use and occupation of the premises for the twelve days and also to a reasonable counsel fee and expenses incident to the summary proceeding.</p>

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

<p>Claim for damages resulting from overflow of Erie canal.</p>

<p>Claim for damages resulting from injuries sustained by reason of defective flooring of a bridge.</p>

<p>Highways — failure of state to make repairs to culvert — liability of state for damages for the flooding of lands — Highway Law, §176.</p> <p>In the fall of 1918 the capstone of a culvert having a span of less than five feet, which the state had constructed under the highway on which plaintiff’s premises are located, fell and sank into the stream, leaving a hole in the surface of the highway, into which a state road patrolman, following the instructions of the state’s engineer, from time to time threw quantities of earth, but the filling was washed away each time, and no repairs were made to the culvert. On March 1, 1919, the stream was swollen by the usual spring thaw and the broken culvert and its obstruction of the stream preventing the discharge of water, backed up and overflowed the plaintiff’s premises, damaging his barn, depositing debris and slime therein, injuring his cattle and destroying a large quantity of hay. Held, that the contention of the state (1) that there had been no statutory waiver of liability or exemption from suit by the state and (2) that there can be no recovery against the state for overflow due to the negligent condition or defect in a highway maintained under the patrol system, but that the statutory liability assumed under section 176 of the Highway Law, extends only to traffic on a</p> <p>highway, and is available only to one using the highway for traffic at the time of his injury or damage, affords no basis for a dismissal of the claim. Bowman v. Town of Ghenango, 227 N. T. 459, followed.</p> <p>There being no dispute as to the facts and the state eonced1 ing that claimant’s loss is at least $500, an award in that amount will be allowed.</p>

<p>Claim for damages for flooding lands.</p>

<p>Demurrer to an indictment.</p>

<p>Insurance (industrial)—payment of death benefit to wife instead of representative of deceased.</p> <p>Where an industrial insurance company in good faith elects to pay the death benefit called for by a policy issued by it to one other than the representative of the estate of the insured, such payment will be a defense against subsequent claims of such representative. (P. 251.)</p> <p>A policy of life insurance issued by defendant was payable to the executors or administrators of the estate of the insured unless payment was made under a clause of the policy which provided that payment might be made “ to any relative by blood or connection by marriage of the insured, or to any person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, for his or her burial.” In an action brought by the widow of the insured, the defendant contended that as by the terms of the policy the death benefit was payable only to an administrator, the plaintiff as an individual had no cause of action. The evidence on the trial was to the effect that defendant’s agent at the time he wrote the policy promised plaintiff that in the event of her husband’s death the insurance would be paid to her. No administrator was ever appointed. The plaintiff paid the premiums and the funeral expenses. Held, that a motion for a new trial after a verdict directed for plaintiff must be denied.</p>

<p>Landlord and tenant — summary proceedings — when proceeding not ‘ ‘ pending ’ ’— mandamus — Laws of 1920, chap. 942.</p> <p>Where before chapter 942 of the Laws of 1920 became effective a final order awarding possession of premises to the landlord in a summary proceeding was granted with a stay expiring October 1, 1920, mandamus lies to compel the clerk to issue the warrant to dispossess the tenant, as the proceeding was not “ pending ” under said statute.</p>

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

<p>Landlord and tenant — action for rent — reasonableness of increase submitted to jury—motion to set aside verdict in favor of plaintiff denied.</p> <p>Where the evidence in a case is so evenly balanced that reasonable men might differ as to the inferences to be drawn therefrom, the court, having fairly submitted the case to the jury, may not set aside the verdict as against the weight of evidence.</p> <p>Where in an action to recover rent due September 1 and October 1, 1920, for apartments in the city of New York, the defendant contends that the fact that the rent paid to plaintiff for the same premises, prior to September 1, 1920, was about eighty per cent less than that demanded of him now, and the court submits to the jury the question of the reasonableness of the increase in rent, a motion by plaintiff, upon whom was the burden of proof, to set aside a verdict in his favor as against the weight of evidence, upon the ground that the increased rent granted by the verdict was insufficient, will be denied in the absence of proof that it was influenced by bias, passion, prejudice or corruption.</p>

<p>Wills — nuncupative — letters of soldier in active service granted probate — Code Civ. Pro. § 2611.</p> <p>Where proof showing testamentary capacity and apprehension of death is corroborated by two witnesses as required by section 2611 of the Code of Civil Procedure, such portions of two letters written by one while in the active military service of the United States in the recent war, and relating to the distribution of his personal property, will be admitted to probate as his last will.</p>

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

<p>Claim for money expended for insurance premiums under the Workmen’s Compensation Law.</p>

Appeal by the defendant from a judgment of the Municipal Court, borough of Brooklyn, fifth district, rendered against it in favor of the plaintiff for the sum of $263.77.

<p>Action in ejectment.</p>

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

<p>Action on contract.</p>

<p>Proceedings upon the settlement of the accounts of an executor asking for a construction of the will.</p>

<p>Transfer tax—non-residents—when good will not taxable — Tax Law, § 220(2).</p> <p>The good will of a business, which consists "in the favorable attitude of the general public thereto, is not “ capital invested in business in the state” within the meaning of section 220(2) of the Tax Law, and is not subject to a transfer tax.</p>

<p>Proceedings upon the contested probate of a will.</p>

<p>Wills — defective execution.</p> <p>The law requires that the subscribing witnesses to a will shall see the signature of the testatrix, when they sign.</p> <p>An indorsement on the reverse side of a paper purporting to make testamentary dispositions of property, in the handwriting of the alleged testatrix, to identify the character of the paper without unfolding it, is not a subscription, at the “ end of the will.”</p> <p>Where both of the subscribing witnesses testify that at no time did they see the signature of the testatrix; that they did not see her sign the paper and that she did not tell them that she had signed it, probate will be denied.</p>

<p>Demurrer to amended complaint.</p>

<p>Action for mandatory injunction dispossessing tenants.</p>

Appeal by plaintiff from an order of the City Court of the city of New York, granting defendant’s motion to set aside the service of a summons and complaint.

Appeal by defendant from an order of the City Court of the city of New York, denying defendant’s motion for judgment on the pleadings, and from an order of the said court granting plaintiffs’ motion for judgment on the pleadings.

Appeal by the defendant from an order of the City Court of the city of New York refusing to strike out a bill of costs taxed in favor of the plaintiff.

Appeal by tenant from final order in summary proceedings in the Municipal Court of the city of New York, borough of Manhattan, fifth district, awarding possession to the landlord, entered upon the verdict of a jury directed by the court.

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

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

<p>Municipal Court, city of New York — costs — when trial fee cannot be taxed — Municipal Court Code, § 164.</p> <p>The Municipal Court Code contains no provision for the taxation of a “trial fee” as such, and the costs to a prevailing party in a Municipal Court action are governed by section 164 of said Code.</p> <p>Where a judgment in favor of plaintiff in an action brought in the Municipal Court of the city of New York has been reversed, the plaintiff, who was successful on the new trial, is not entitled to tax the costs of the first trial.</p>

25 damages and costs directed in favor of the plaintiff in the City Court of the city of New York, and from the order denying a motion to set the verdict aside.

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

<p>Process — when service by publication upon foreign corporation will not be vacated — attachment — Code Civ. Pro. § 657.</p> <p>Section 657 of the Code of Civil Procedure provides for the trial of the claim of a third party to property held by virtue of a levy of a warrant of attachment.</p> <p>Where the sheriff has levied a warrant of attachment upon the proceeds of a draft held by a bank, as the property of the defendant, a foreign corporation, and the defendant, on motion to vacate service on it by publication, alleges that it sold certain goods to the plaintiff and that the draft received in payment therefor, accompanied by the bill of lading, was assigned and delivered to another bank in part payment of a prior loan by it to defendant, the motion will be denied upon the ground that, if granted, the effect would be to render nugatory section 657 of the Code of Civil Procedure.</p>

<p>Action for the recovery of real property used for dwellng purposes.</p>

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

Motion by the defendant for an order directing the clerk to enter final judgment dismissing the complaint and to tax costs in the sum of sixty-five dollars.

Proceedings to compel witness to appear for examination before a committee of the common council of a city and to produce books and papers.

<p>Carriers — stoppage in transitu — bailments — when delivery to carrier is delivery to purchaser — when agent cannot be held liable .for failure to obey instructions.</p> <p>The right of stoppage in transitu arises solely when an unpaid seller has shipped goods to an insolvent buyer. (P. 388.)</p> <p>The pledgee of goods permitted the real owner to take and sell them in its own name, on its promise to pay over to the pledgee, to apply on a past due debt the cheek or money received, with no special notice to or agreement with the purchaser, and to deliver the goods to a carrier and take a bill of lading in its own name as consignor. Held, that the pledgee, in the absence of any fraud inducing her to part with possession of the property, had lost the right to demand that possession thereof be restored to her by the purchaser. (Pp. 389, 390.)</p> <p>After the goods had been shipped the consignee advised the consignor, who at the time of the shipment was on the verge of bankruptcy, that it would not send a check but would credit the shipment on a past due indebtedness of the consignor, whose president, acting for the pledgee, gave notice to the carrier to stop the shipment. The shipment was not stopped and the consignor received no check or money in payment of the goods. In an action by the pledgee against the carrier for its alleged negligence in failing to stop the shipment and return the goods to her, the jury, upon the special question of facts submitted, subject to the opinion of the court, found that the defendant’s agent, whose efforts to stop the shipment were not in conformity with the instructions given by plaintiff’s agent, and the defendant were both negligent in their acts in that respect. (P. 387.) Upon granting a nonsuit, on motion reserved, held, that the delivery of the goods to defendant constituted a delivery thereof to the purchaser, subject to the right of stoppage in transitu, but there being no claim or evidence that the consignee was insolvent, the plaintiff had lost her right to demand that the consignee restore possession of the goods to her. (P. 390.)</p> <p>The fact that defendant’s agent took an indemnity agreement from the consignor, the effect of which was that defendant should be deemed the agent of the consignor, to make an attempt to stop the shipment and return it to the consignor, did not change the situation as he would have been unable to do legally what was required of him, and plaintiff suffered no loss even assuming that she was entitled to the benefit of the indemnity agreement. (Id.)</p> <p>An agent is not liable for failing to do what the law does not and will not permit him to do, and he cannot he held accountable for failure to obey instructions and perform acts which are illegal. (P. 391.)</p>

<p>Action for rent.</p>

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

<p>Court of Claims — form of notice of intention — Code Civ. Pro. § 264.</p> <p>After August 13, 1918, the water level in the Erie canal was raised about eighteen inches and due to defective construction of the bank adjacent to claimants’ farm, the coping had slid into the canal bottom, the water of the canal percolated and leaked through the bank onto claimants’ field, damaging certain of the growing crops. Held, that a notice of intention, the filing of which was proved, at the end of which and preceding the verification the claimants’ names appeared typewritten, followed by the verification suhscribed by one of the claimants, fulfilled the requirements of section 264 of the Code of Civil Procedure and was sufficient without regard to the typewritten signatures.</p> <p>A motion to amend the notice of intention and claim to conform to the proof, denied as unnecessary.</p>

<p>Court of Claims — jurisdiction — Laws of 1919, chap. 579 — strikes — negligence of National Guard in firing into crowd.</p> <p>The statute (Laws of 1919, chap. 579) conferring jurisdiction upon this court to hear and determine a certain claim against the state for personal injuries caused by the alleged negligence of certain members of the National Guard of the state, who had been ordered out to preserve order while a strike was in progress, and authorizing an award of damages if the same was justified by the evidence, is neither an audit nor an allowance of the claim. (Pp. 413, 414.)</p> <p>To entitle the claimant to a recovery, the court must find that the guardsmen who fired into the crowd were not, in the circumstances, exercising reasonable precaution and due care, and that the claimant on the evidence was justly and equitably entitled to compensation regardless of legal rules and principles. (P. 415.)</p> <p>Evidence that when the order to fire was given and immediately previous thereto, the sergeant and his men were in no danger, were not resisted, menaced or attacked, and that the crowd was fifty feet from them and running away, and that claimant and her witness were shot in the back, satisfactorily establishes that the shooting was not a reasonably prudent or careful act, and claimant will be given an award of $2,500. (Pp. 415, 416.)</p>

<p>Wills — construction of—an unincorporated association cannot take legacy.</p> <p>'The New York State branch of the Shut-In Society, being an unincorporated association, cannot take a legacy, and in order to sustain the testator’s purpose, the legacy must be paid to the principal corporation.</p>

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

<p>Executors and administrators—accounting—when common-law marriage establishes status of widow.</p> <p>Where in January, 1903, when common-law marriages were invalid in the state of New York, citizens thereof legally ' entered into a common-law marriage in the state of Pennsylvania, whither they had gone for that express purpose, and immediately returned to the state of New York, such marriage is not invalid here. (P. 433.)</p> <p>Where irrespective both of what happened in the sister state and that common-law marriages were not valid in the state of New York between January 1, 1902, and January 1, 1908, it appears that for the years prior to the latter date the acts and conduct of the parties were such as to give evidence of a purpose to live together as husband and wife, a contract of marriage will be presumed to have been entered into on that date. (Pp. 433, 434.)</p> <p>Upon the settlement of the accounts of the administratrix of decedent his next of kin challenged the widowhood of the petitioner. Held, that the evidence clearly established a common-law marriage between petitioner and decedent in this state and her status as his widow, and a decree will be entered directing distribution of the estate accordingly.</p> <p>The essential elements of a valid common-law marriage stated and discussed.</p>

<p>Riparian rights — rights of upland owners — colonial patents — navigable waters — Gravesend bay — filled in lands. '</p> <p>Riparian rights are an incident to the ownership of the upland, i. e., property rights which cannot be taken except by consent or proper compensation. (P. 442.)</p> <p>Under the rule that nothing passes by implication in a grant by a sovereign beyond what is essential to the enjoyment of the thing granted, patents and grants bounded upon or by the sea or navigable waters where the tide ebbs and flows, convey title only to high water wark. (P. 441.)</p> <p>The rule is slightly different, however, where the owner of the upland, having a grant from the state to lands under water adjacent to the uplands, fails to include his rights to the lands under water, in a conveyance of the uplands. (Id.)</p> <p>Colonial patents show that the town of Gravesend owned all the lands under Gravesend bay, and in compliance with the statute (Laws of 1883, chap. 458) which provided a method for the sale of lands owned by the towns, a notice was duly published describing certain property proposed to be sold, as “ old Lot 44 ” which was shown on the “ Kowalski map ” duly filed. This map showed the northerly line of the land as running along the high water line of Gravesend bay. A proposition by plaintiff’s predecessors in title to purchase the lot having been duly accepted at a town meeting, the trustees gave a deed which described the northerly line as “ thence west along said bay, etc.,” and attempted to convey all the lands under water adjacent to and in front of the upland, though the offer to purchase did not include such lands, and there was no consideration for a transfer thereof. Held, that though the title to the lands under water did not pass by implication, the plaintiff as riparian owner had the right of access, the .right of accretion, the right to the reasonable use of the water of .the bay for all legitimate purposes, and the right to have the shores of her land washed by the adjacent waters. (Pp. 439-442.)</p> <p>Where, therefore, land under water in front of plaintiff’s premises has been filled in, largely by the United States government and partly by natural causes, and such governmental action has neither been consented to nor ratified by plaintiff and it cannot be determined precisely how much of the filled in land, of which the city of New York has taken possession, and exercised acts of ownership, resulted from the fill by the government, the plaintiff in an action against the occupancy of the filled in land by said city or its licensees, will be granted a judgment restraining the erection of any building thereon and commanding the removal of building materials therefrom, and adjudging that the title to the upland to mean high water mark, as it existed in 1920, is vested in plaintiff, and that the city of New York is the owner in fee of the land below mean high water. (Pp. 442-444.)</p>

<p>Process — service by publication — proof of mailing — letter box within building — Code Civ. Pro. § 440.</p> <p>Judicial notice cannot be taken that a mail box at 280 Broadway in the city of New York was authorized or maintained under the acts of congress relating to the postal service.</p> <p>Where an order for the service by publication of the summons, etc., directed, as provided by section 440 of the Code of Civil Procedure, that they be deposited in a “post office, branch post office or post office station,” an affidavit of service stating that the deposit was made “in a mail box at 280 Broadway ” is insufficient.</p>

<p>Ships and shipping — designated vessels — contracts — notice of shipment—injunction against negotiating drafts.</p> <p>Where in effect a contract of sale was for goods to arrive by particular vessels declared or their proper substitutes, both the arrival and identity of vessel are conditions of the contract, and the failure of the seller to give notice of the several vessels is a breach of the contract.</p> <p>The subjects of the contract were particular designated lots of sugar, as should be shipped during specified periods, and by designated vessels, due notice of which it was the seller’s duty to give. Without regard to a clause of the contract authorizing a change in the designation of a vessel only in case of “ accidents,” the seller changed the designation capriciously and presented to and obtained the acceptance of the defendant bank of a draft covering the first shipment by a vessel other than that declared. The letter of credit was not drawn in terms to protect the buyer against such a departure from the contract. Held, that in an action by the buyer, after notification that it had rescinded the contract, to restrain the seller from negotiating drafts against the remaining shipment, the plaintiff will be granted an injunction pendente lite upon giving a bond in an amount to be fixed by the order.</p> <p>The plaintiff having put into the hands of the seller negotiable paper, part of which it has used and the remainder of which is threatened to be used in violation of the contract, the jurisdiction of equity was properly invoked to' restrain the threatened wrong.</p>

<p>Action to determine ownership of land under water.</p>

<p>Applications for peremptory writs of mandamus.</p>

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

<p>Mandamus — when application for a peremptory writ of, denied — schools — board of education of city of Buffalo—Education Law, § 872.</p> <p>Under section 872 of the Education Law the appointment of a public school principal by a city board of education upon the recommendation of the city superintendent of schools, can only be for a probationary period of not less than one year and not to exceed three years, as fixed by the board of education in its discretion.</p> <p>Relator, who had served as a teacher in the public schools of the city of Buffalo, was on October 29, 1918, appointed the principal of one of the schools for two years, and on October 11, 1920, her service as principal was summarily discontinued by the board of education without a complaint, charges or hearing. Held, that as under the statute the board of education had the legal right to discontinue the services of relator without a hearing, her application for a peremptory writ of mandamus to compel her reinstatement as such principal, upon the ground that her removal was unlawful, will be denied.</p> <p>The board of education not having removed relator from her position as teacher, it could not, under the prayer of the petition for “ such other and further relief as may be just and proper,” be compelled to reinstate her to a position from which she had not been removed, and in that regard the application must also be denied.</p>

<p>Penalties — action to recover for violation of the Public Health Law — statutes — constitutional law — evidence — Farms and Markets Law (Laws of 1917, chap. 802, § 58)— Public Health Law, § 337 — State Constitution, art. Ill, § 17.</p> <p>The Farms and Markets Law (Laws of 1917, chap. 802, constituting chapter 69 of the Consolidated Laws) creates a department of farms and markets and dispenses with the department of agriculture, the department of foods and markets, the state sealer of weights and measures and a portion of the department of health, and section 100 of said statute, in effect, repeals all inconsistent portions of the Agricultural, General Business and Public Health Laws. (Pp. 483, 484.)</p> <p>The use of the word “ herein ” in section 58 of the Farms and Markets Law, which declares that “ every person violating any of the provisions of this chapter, or of any other law, the enforcement of which is within the jurisdiction of the department shall, except where other penalties are herein prescribed, be subject to a penalty,” etc., refers to that statute, and acts as a repeal of all the civil penalties in the Agricultural Law, and those portions of the General Business and Public Health Laws affected thereby, and substitutes in their place the penalty provided in said section 58. (P. 484.)</p> <p>The creation of a new penalty in the Farms and Markets Law for a violation of the Public Health Law does not make the existing law or any part thereof a part of the new statute, but is in the nature of an amendment. (Id.)</p> <p>The entire scheme of the Farms and Markets Law, as expressed particularly in sections 20 and 100, being to create a new method of procedure for violations of existing laws, said statute is not in conflict with section 17 of article III of the constitution of the state, which declares that “ No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or part thereof, shall be applicable, except by inserting it in such act.” (P. 487.)</p> <p>Section 58 of the Farms and Markets Law is not in conflict with said constitutional provision, as taking the intended meaning of the word “ applicable” in said constitutional provision to mean “ to bring into actual contact with,” then by the addition of a penalty, the new law is made applicable to the old law but the old law is not made applicable to the new. (Pp. 485, 486.)</p> <p>The statute (Public Health Law, § 337) which arbitrarily fixes a period of twelve months as the maximum time for food to be kept in cold storage, is constitutional, and whether the food is wholesome or not at the expiration of the twelve months does not determine the constitutional question. (Pp. 488-491.)</p> <p>The complaint in an action to recover penalties for three separate violations of section 337 of the Public Health Law alleged that defendant retained in its storage warehouse certain butter and smoked bloaters for a longer period than twelve calendar months. Held, that evidence that the fish mentioned in the second cause of action were received by defendant after the enactment of the Farms and Markets Law, which is not retroactive, disposed of a claim that said cause of action was not valid, and it appearing that the fish were kept by defendant for nearly two years, plaintiff was entitled to judgment for $100. (P. 491.)</p> <p>The violations set forth in the first and third causes of action not being aggravated, plaintiff is awarded judgment for fifty dollars for each violation. (Id.)</p>

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

<p>Motion to discharge mortgage of record.</p>

<p>Trial — when defendant not entitled to a prior trial of issues, arising upon an equitable counterclaim — when separate trial granted — actions — pleading — stay — motions and orders.</p> <p>Where the facts pleaded as an equitable counterclaim to an action at law also constitute a complete defense, the defendant is not entitled to a prior trial of the issues raised by the counterclaim, even assuming that the success of defendant on the counterclaim would completely defeat a recovery by plaintiff. (P. 504.)</p> <p>In an action for wrongful discharge before the expiration of a contract to employ plaintiff for three years, the defendant besides a general denial pleaded as a counterclaim a cause of action for specific performance of a provision of the contract which obligated plaintiff, if the agreement should he terminated before its time limit, to sell to defendant at par all shares of its stock acquired by plaintiff pursuant to the contract. The Appellate Division, on the theory that a recovery by defendant on the counterclaim would involve a finding that plaintiff had been rightfully discharged, reversed an order sustaining a demurrer to the counterclaim, and overruled the demurrer. Meld, that although defendant was not entitled to have the issues arising upon the counterclaim first tried, its motion for a separate trial thereof at Special Term will be granted, but such trial will be stayed until the trial of the issues arising upon the complaint and answer, exclusive of the counterclaim. (Pp. 506, 509.)</p>

<p>Statutes — Laws of 1920, chap. 942 — landlord and tenant—lease — motions and orders — evidence — summary proceedings — when motion for a new trial denied — Code Civ. Pro.« § 2231 (1-A).</p> <p>The statute (Laws of 1920, chapter 942) which added subdivision 1-A to section 2231 of the Code of Civil Procedure, provides that no proceeding under subdivision 1 “shall be maintainable to recover the possession of real property * * * except * * * a proceeding to recover premises constituting a part of the building and land which has been in good faith sold to a corporation formed under a cooperative ownership plan whereof the entire stock shall be held by the stockholders in proportion to the number of rooms occupied or to be occupied by them in such building,” etc. Held, that the very purpose of the statute was to permit a tenant out of possession to secure possession and that tenant-owners might be either in occupation or prospective. (Pp. 511, 512.)</p> <p>In a proceeding brought under the new statute by the owner in fee of a building, representing the cooperative tenant-owners, against the holding-over tenants of the former owner, who refused to vacate for the new purchasers under a cooperative ownership plan, all questions of fact were submitted to the jury. Upon denying a motion to set aside the verdict, held, that the right to maintain the proceeding was not limited to organizations of tenants who had formed a cooperative ownership corporation for their own benefit. (P. 512.)</p> <p>It is not essential that a stockholder should be in physical possession of his stock certificate, and a contention that because certain of the certificates were still in the stock book some of the tenant-owners were not stockholders, was without force. (Pp. 512, 513.)</p> <p>Where the proof on behalf of the tenant showed that all the stock representing sixty-nine rooms in the building, which the former owner had taken over for the purposes of the organization, was transferred to the tenant-owners who after the transfer of the building to the present landlord purchased their apartments and were approved by the cooperative organization, the jury were justified in finding that the organization was properly perfected under the statute, though the former owner of the building, at the commencement of the present proceedings, did not appear to be a stockholder. (P. 513.)</p> <p>It was not the legislative intent to limit the formation of cooperative organization of tenants to those whose plans had been effected prior to September 27, 1920, when the new statute went into effect. (Pp. 513, 514.)</p> <p>It having been shown that one of the cooperative owners had purchased an apartment and paid his money under the general plan, a finding that he was a lessee' was justified even though his written lease had not been executed. (P. 514.)</p> <p>The lease which was for a term of eight years contained a covenant on the part of the landlord which did not provide for a perpetual lease, but the proof was sufficient to warrant the jury in finding that the stockholders in good faith intended the apartments for their “personal, exclusive and permanent occupancy ” as provided by subdivision 1-A of section 2231 of the Code of Civil Procedure, and a motion for a new trial will be denied. (Pp. 514, 515.)</p>

<p>Motion to entertain petition for letters testamentary.</p>

Appeal by a tenant from an order of the Municipal Court of the city of New York, borough of Manhattan, seventh district, awarding possession of premises to the landlord.

Appeal by a tenant from a directed verdict in favor of the landlord in summary proceedings instituted in the Municipal Court of the city of New York, borough of Manhattan, seventh district, for possession of premises on the theory of a holdover.

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

Appeal by defendants from an order of the Municipal Court of the city of New York, borough of Manhattan, fifth district, denying the motion to open the default.

Appeal by a landlord from so much of a final order in summary proceedings in the Municipal Court of the city of New York, borough of Manhattan, seventh district, as stays the issuing of the warrant until October 1,1920.

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

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

<p>Constitutional law—constitutionality of the “Housing Laws” (Laws of 1920, chaps. 942, '944, 945, 947)—statutes—land-lord and tenant — ejectment—Constitution, art. 6, § 1.</p> <p>Ejectment — when motion for judgment on the pleadings denied — landlord and tenant — use and occupation — pleading — “ Housing Laws ’’ of 1920.</p> <p>Duty to society implies that the absolute ownership of property carries with it the reciprocal duty of so managing its use that the common good and general welfare will be best conserved. (P. 547.)</p> <p>The police power comprehends every law which in any way concerns the public welfare and in every case the validity and the legitimacy of its exercise is inextricably interwoven with the maxim sic wtere tuo ut alienum non laedas. (P. 548.)</p> <p>No constitutional right of an owner of real property in the city of New York, etc., was transgressed by the enactment of the statute known as the “ Housing Laws ” (Laws of 1920-, chaps. 942, 944, 945, 947) which took effect September 27, 1920. (P. 571.)</p> <p>The statute (Laws of 1920, chap. 947) which for the period of two years from the time of its enactment suspends the remedy of ejectment against tenants holding over after the termination of their leases, is not violative of section 1 of article 6 of the Constitution of the state, which declares that the Supreme Court is continued with general jurisdiction in law and equity. (P. 562.)</p> <p>In an action of ejectment by the owner of a dwelling house in the city of New York in which the defendant, a monthly tenant from September 24, 1918, occupied an apartment, the complaint alleged that since September 24, 1920, defendant has withheld possession of the premises from plaintiff, that the reasonable value of the use and occupation thereof was a stated sum, and demanded judgment, for possession of the premises.</p> <p>The answer, besides a general denial, pleaded the remedies afforded by the recent legislation, known as the “Housing Laws ” of 1920. Held, that plaintiff's motion for judgment on the pleadings will be denied.</p>

<p>Motion to set aside verdict and for dismissal of complaint.</p>

<p>Action- for a permanent injunction to prevent the removal of a body.</p>

The plaintiff in the above-entitled action asks for an order changing the place of trial to some county in the fifth judicial district other than Jefferson county, on the ground that there is reason to believe that an impartial trial cannot be had in that county, and that the ends of justice will be promoted by the change.

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

<p>Claim for damages by reason of injuries sustained upon a state highway.</p>

<p>Proceeding to permit executor to enter into possession of real property.</p>

<p>Motion to recover moneys paid into court.</p>

<p>Petition for an order directing arbitration.</p>

Demurrer by the plaintiff to the third counterclaim contained in defendant’s answer brought on to be heard as a contested motion.

<p>Motion by plaintiff for a new trial after the direction by the court of a verdict for the defendant at the close of all the evidence.</p>

<p>Wills — construction of — when appointment of a testamentary guardian not effective — trusts — infants — executors and administrators — accounting.</p> <p>An attempted appointment of a testamentary guardian of the persons of infants by their brother while their father is still living, is not effective.</p> <p>Where the intention of testator that the person nominated as such guardian should have control of property devised and bequeathed to infant sisters and a brother, is manifested by the appointment of the intended guardian as trustee without bond for said infants, with direction that the property to which they shall be entitled, whether real or personal, shall be received and invested by the trustee as she may deem best, the attempted trust fails and the property in question passes to those for whose benefit the testator attempted to create the trust.</p> <p>Although the attempted appointment of the testamentary guardian was ineffective for that purpose, the one so nominated has a power in trust over the property of the infant beneficiaries, which gives her just the same custody and control thereof as a testamentary guardian would have.</p>

<p>Peoceedings for the. construction of a mil on the accounting of executors.</p>

<p>Executors and administrators — Surrogates’ Courts — jurisdiction — contested probate proceedings in a sister state ■—when letters of temporary administration will be issued — Code Civ. Pro. §§ 2515, 2596.</p> <p>Where a contested probate proceeding is pending in a sister state and no ancillary or original proceeding is pending in this state where the decedent left assets of great value, the Surrogate’s Court under sections 2515 and 2596 of the Code of Civil Procedure may in the exercise of its discretion grant letters of temporary administration, not only for the general welfare of the estate but also as a protection of the rights of the New York creditors against the estate.</p>

<p>Motion to retax costs.</p>

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

<p>Bill of particulars — when must be filed ■— use and occupation — lease — statutes ■—when motion for dismissal of complaint granted — Laws of 1920, chap. 944, § 2.</p> <p>Where in an action to recover the reasonable value of the use and occupation by defendant of an apartment in the city of New York, after the expiration of his term under a prior written lease, the answer puts in issue the reasonableness of the rent, the plaintiff must file a bill of particulars as required by section 2 of chapter 944 of the Laws of 1920, and for failure so to do, a motion for the dismissal of the complaint will be granted.</p> <p>The courts, as an aid to the proper construction of statutes, may resort to legislative reports.</p>

<p>Landlord and tenant — statutes — evidence — duress — Laws of 1920, chap. 136, § 1 — Laws of 1920, chap. 944, § 4.</p> <p>Chapter 944 of the Laws of 1920, in effect September 27, 1920, is not a new statute but an amendment of chapter 136 of the laws of that year, which went into effect April 1, 1920, and is prospective only, and section 4 of the later statute being identical with section 1 of the earlier statute, is retroactive only to April 1, 1920. (P. 660.)</p> <p>Before April 1, 1920, while defendant was in possession as lessee of a portion of an apartment house in the city of New York for a term of two years beginning October 1, 1918, a new lease for two years beginning October 1, 1920, was entered into between defendant and plaintiff, who had acquired the title to the building, at a rental ninety-two and three-tenths per cent greater than the then existing rent. In an action to recover the first installment of rent under the new lease, held, that defendant could not- invoke the aid of chapter 136 or chapter 944 of the Laws of 1920, and thereby cast the burden of proving the reasonableness of the rent upon the landlord. (P. 669.)</p> <p>Defendant’s possession of the premises after October 1,1920, was not by virtue of the new lease, but he was holding over under the terms of the expired lease as authorized by the now existing statute. (Id.)</p> <p>While no general rule can determine what facts are necessary to plead or prove tending to show that defendant, possessed with fear of the loss of his home, was deprived of the free exercise of his will when he executed the lease, the existing housing shortage without the support of other facts was insufficient to sustain the defense of duress. (P. 670.)</p> <p>Evidence considered, and held, that the new lease, having been shown to be tainted with duress in its execution, judgment is directed for the defendant.</p>

Appeal by plaintiff from a judgment of the City Court of the city of New York, dismissing the complaint upon the merits at the close of the case, after trial by the court without a jury.

<p>¡New trial — homicide — defense of irresponsibility must be interposed at trial.</p> <p>The defense of irresponsibility to a charge of homicide must be interposed at the trial, and like other defenses, it is concluded by the result of the trial, whether interposed or not. (P. 678.)</p> <p>The statute that permits the granting of a new trial for newly discovered evidence applies to the defense of insanity. (Id.)</p> <p>After the affirmance of a judgment of conviction in a capital ease, a motion to set aside the judgment and for a new trial upon the ground that since his conviction it has been discovered that the defendant, at the time of the commission of the homicide, was of such weak mentality as not to be able to appreciate the significance of his acts, a condition it was claimed existed throughout his life, will be denied on the ground that the ends of justice would bo defeated if the motion were granted.</p>

<p>Action for an injunction to restrain the collection of a tax.</p>

<p>Cemetery associations — lease of cemetery lands for mining purposes unlawful — statutes — corporations — injunctions —</p> <p>Membership Corporations Law, § 13.</p> <p>The general power conferred by section 13 of the Membership Corporations Law on all corporations organized thereunder, to make leases for five years without leave of court, has no application to and does not embrace that part or portion of the lands of the cemetery association, as declared in the last clause of the same section of the statute.</p> <p>A lease of cemetery lands for mining purposes is not only ultra vires but is in contravention of the statute and inconsistent with the objects and purposes for which the lessor was organized, and the court is without power to sanction such a lease without explicit legislative authority.</p> <p>Assuming the validity of such a lease for five years, a covenant therein giving an absolute right of renewal for a period of fifty years is void as constituting an evasion of the statute and in contravention thereof, and the lessor may repudiate the whole lease.</p> <p>In an action by lot owners of the cemetery association for a permanent injunction against the mining of gypsum rock or tunneling for that purpose under the places of burial in the lands of the cemetery and to carry away all minerals thereunder, plaintiffs will be granted the relief prayed for.</p>

<p>Motion to set aside verdict rendered 'by the jury in favor of the defendant.</p>

<p>Motion for an order enabling plaintiff to withdraw the deposit made by defendants, tenants.</p>

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

<p>Application under section 1001 of the Greater New York Charter (Laws of 1901, chap. 466, as amended by Laws of 1906, chap. 658), for an order determining title to an award made to unknown owners by commissioners of estimate.</p>

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

<p>Action by plaintiff to have section 1 of chapter 227 of the Laws of 1907 declared unconstitutional in that it confiscates plaintiff’s property.</p>

<p>Motion to dismiss condemnation proceedings.</p>

Action in partition, involving title to lands in Kings county, New York, and lands under water in Grave-send bay, Claim of the city of New York to such lands under ancient charters to the towns of Gravesend and New Utrecht. Effect of permit to fill in lands under water. Estoppel.