Volume 114 — New York Miscellaneous Reports

<p>Trial by the court without a jury under stipulation of the parties.</p>

<p>Appeal from a judgment of the City Court of Buffalo rendered in favor of plaintiffs.</p>

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

<p>Adjoining owners — establishing title — when lot owner cannot take forcible possession of a disputed strip of land — deeds — injunctions — ejectment—Code Civ. Pro. § 968.</p> <p>A lot owner, except by virtue of a judgment in a proper action establishing his title, cannot take forcible possession of a disputed strip of land claimed by an adjoining lot owner.</p> <p>Where in an action between adjoining lot owners on a city block to determine the title to a strip of land to which plaintiff claims title by adverse possession, it appears that the properties of both parties are about two feet off the line as given in their respective deeds, a permanent injunction will be granted restraining the defendant from moving a building onto the disputed strip after he had torn down the division line fence.</p> <p>The remedy of the defendant is an action of ejectment in which, under section 968 of the Code of Civil Procedure, he, as plaintiff, would have the right to have the issues framed tried by a jury.</p>

<p>Gifts — causa mortis — accounting — executors and administrators <—jurisdiction—Surrogate’s Court — evidence — Code Civ. Pro. § 2679.</p> <p>Objection having been made to the accounts of an administrator for failure to account for the proceeds of a judgment assigned by the decedent and satisfied of record, a motion to dismiss the objection, on the ground that the Surrogate’s Court has no jurisdiction to determine the issues involved, will be denied under section 2679 of the Code of Civil Procedure.</p> <p>Where, with the exception of delivery, all the other elements of a gift causa mortis of household furniture, of which decedent had no right of possession until the termination of the lease of an apartment which he had sublet, were amply proved and conceded, and it appears that he had given the donee the keys of the apartment before the gift was formally evidenced by a writing, it will be held that there was a valid gift causa mortis.</p>

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

<p>Submission of controversy on agreed statement of facts.</p>

<p>Motion to change place of trial.</p>

<p>Motion by defendant to change place of trial.</p>

Motion by the defendant, after conviction of murder in the first degree and appeal therefrom to the Court of Appeals, to inspect the minutes of the grand jury for the purpose of moving to dismiss the indictment.

<p>Action to recover the value of the contents of a trunk.</p>

<p>Wills — construction of — power of sale — equitable conversion—. suspension of power of alienation — Beal Property Law, § 42.</p> <p>A will empowered and directed the executor to sell and convey the real estate of his testatrix at such time as he might deem proper, “but not less than two years after my death,” with direction to distribute the proceeds among designated legatees. Held, that the power of sale was mandatory and worked an equitable conversion of the real estate.</p> <p>While under section 42 of the Real Property Law the limitation of the power of sale could not be given effect, the intention of the testatrix that her property should be sold and distribution made as provided by her will, could be carried out by eliminating the attempted unlawful suspension of the power of alienation, the limitation should be treated as directory merely and not as of the essence of the power of sale.</p>

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

<p>Pleading — when defense stricken out — summary proceeding — lease.</p> <p>In a summary proceeding to dispossess a tenant for nonpayment of rent of a dwelling apartment in the city of New York, he must, at the time of filing an answer pleading that the rent is unreasonable, deposit one month’s rent as reserved in the lease, and for failure so to do, the defense, on motion of the landlord, will be stricken out.</p>

<p>Proceedings on appointment of guardian for infant.</p>

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

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

Appeal by tenant from a final order of the Municipal Court of the city of New York, borough of Manhattan, fifth district, in favor of the landlords.

Appeal by plaintiff from that part of an order of the City Court of the city of New York overruling plaintiff’s demurrer to the fourth defense.

Appeal by defendant from judgment of the City Court of the city of New York on verdict directed for plaintiff and from order denying motion for new trial.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, dismissing the plaintiff’s complaint with costs to the defendant.

Appeal by the landlords from an order of the Municipal Court of the city of New,York, borough of Manhattan, third district, dismissing the petition in a summary proceeding.

Appeal by the defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the plaintiff, for the sum of $783.

Appeal by the defendant from an order of the Municipal Court of the city of New York, borough of Manhattan, first district, denying a motion to vacate the service of the summons and the judgment entered by default on such service.

Appeal by plaintiffs from a judgment of the City Court of the city of New York, dismissing the complaint at the close of the plaintiffs’ case, 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, seventh district, dismissing the petition of the landlords to recover possession of a certain apartment.</p>

Motion to confirm report of referee in certiorari proceedings to obtain exemption from taxation of relator’s real estate.

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

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

<p>Action for fraud.</p>

<p>Foreclosure — mortgages — default — when deficiency judgment may not he entered for taxes and assessments.</p> <p>Though the defendant in an action to foreclose a mortgage who made the bond allows a default to be taken against him, no judgment for deficiency may be entered against him for taxes and assessments paid by plaintiff after the action was commenced.</p>

<p>Title — action to quiet — tax deed — real property— Tax Law, §§ 132, 134.</p> <p>In an action to quiet title brought by the owner in possession of certain real property against the purchaser at a tax sale who never was in possession, to set aside and cancel the tax deed given to defendant by the county treasurer, it appeared that through a clerical error in the tax office a double assessment was levied against the property, one running against the owner, which 'was paid, and one against an unidentified person. Meld, that the recording of the tax deed without proof of service of the notice required by section 134 of the Tax Law, which the purchaser at the tax sale did not give, was void, and that plaintiff was not barred by section 132 of the Tax Law from asserting her right to have the tax deed canceled.</p>

<p>Executors and administrators — when application for letters of administration granted — statutes — preference — Code Civ. Pro. §§ 2564, 2565, 2588(2).</p> <p>A surrogate has no discretion to exclude a person declared by statute to be entitled to priority of appointment as administrator, except in cases where his disqualification is declared by the statute itself.</p> <p>After the death of a wife intestate, her surviving husband died leaving a will by which he gave one-third of his estate to a son, one-third to a daughter, who favored the appointment of the son as administrator of the mother’s estate, one-sixth to a daughter who favored the appointment of another daughter who was given one-sixth of the estate for life, with remainder to the son. The father’s will is being contested by the daughter who petitions for letters of administration, and the daughter who favors such appointment. Held, that facts alleged against the son, who opposed the appointment of his sister as administratrix, not being such as are set forth in either section 2564 or 2565 of the Code of Civil Procedure as constituting disqualification to receive letters of administration or as conditions warranting a refusal to grant them to him, his application therefor will be granted and the application of the daughter denied, as, though both had an equal right of administration, under section 2588(2) men must be preferred to women.</p>

<p>Exemptions — when widow not estopped from claiming her statutory right — husband and wife — dower — Code Civ. Pro. § 2670.</p> <p>Where in 1889, about a year after their marriage, the wife of decedent, who died in 1920, executed a release of her dower and other rights which she had or might have in and to his property, and it appears that no children were born of the marriage; that since the execution of the contract the parties had lived separate and apart, and that the wife had never demanded or received any support or maintenance from him, it must be held, under section 2670 of the Code of Civil Procedure, that he died having a family, and that the wife was not estopped from claiming her statutory right to have certain property set apart to her as widow.</p>

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

<p>Depositions — when motion to vacate order for examination before trial denied—express companies — joint stock associations — parties — Code Civ. Pro. §§ 870, 872.</p> <p>Where the defendant in an action brought against him as president of an express company, which, by not denying in his verified answer he admits is a joint stock association of which he is the president, and the moving affidavit upon which an order for his examination before trial as president of the express company “ or any other officer ” of the company, clearly sets forth such facts and circumstances as show the materiality and necessity of the testimony sought, a motion to vacate the order will be denied but the order mil be modified to the extent of striking out the words “ or any other officer.”</p> <p>The defendant, as president, and not the express company, was the “ party to the action ” within the meaning of sections 870 and 872 of the Code of Civil Procedure.</p>

<p>Motion to strike out certain denials and a separate defense set up in defendant’s answer.</p>

<p>Pleading — when demurrer to complaint overruled — restaurant keepers — injury to guest — when motion for judgment on the pleadings denied.</p> <p>Where in an action by one who while a guest in defendant’s restaurant was seriously injured by being struck on the head by a heavy glass water tumbler thrown by a patron of the. restaurant, the complaint alleges that defendant had notice, through the continued offensive, boisterous and unlawful conduct of the patron who threw the tumbler, a demurrer to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action will be overruled, and defendant’s motion for judgment on the pleadings denied with leave to serve an answer.</p>

<p>Demurrer to defense.</p>

<p>Contracts — when action cannot be maintained against third person for damages for breach of contract to marry — pleading — fraud — when motion for judgment on the pleadings granted.</p> <p>A party to a contract to marry cannot maintain an action for general damages against a parent or other person who even maliciously induces the other party to break the contract, unless fraud or other tortious means be employed.</p> <p>A demurrer to a complaint which alleged inter alia that plaintiff incurred great expense in anticipation of his marriage to defendant’s daughter and had suffered damages in the sum of $10,000 by reason of the deprivation of the companionship, society, love and affection of his fiancee, sustained with leave to serve an amended complaint and defendant’s motion for judgment on the pleadings granted.</p>

<p>Injunctions — when motion to vacate a temporary injunction granted — labor unions — meaning of word “picketing”— damages.</p> <p>Employees on strike may employ persuasion and peaceable means to keep non-union men from taking their places, and the fact that the employer is irreparably damaged as an incident of picketing by the strikers and that it has no adequate remedy at law does not deprive the strikers of their legal right to “ picket,” providing there is no malice and no violence. (P. 188.)</p> <p>A motion to vacate a temporary injunction principally against “picketing” granted in an action brought for a permanent injunction against certain workmen of the plaintiff, out on strike, granted, with admonition to defendants that any excesses or violence or depredations or destruction of property will result in another injunction, instanter. (P. 197.)</p>

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

<p>Wills — when probate decreed — husband and wife — Decedent Estate Law, § 35.</p> <p>Upon the death of a wife in this state, her last will and testament, executed in another state while she was unmarried, may be admitted to probate in this state, under section 35 of the Decedent Estate Law, though her surviving husband was not mentioned in the will.</p>

<p>Sheriffs — duties of — executions—when motion for an order permitting sheriff to deposit in court before the return day the proceeds of execution sales granted — judgments — General Rules of Practice, rule 6 — Code Civ. Pro. § 723.</p> <p>It is the well-settled law of this state that it is the duty of the sheriff, not only to collect the moneys due upon an execution by the return day thereof, but to bring the same into court, or pay it over to the plaintiff or his attorney by such return day. (P. 208.)</p> <p>A sheriff, having in his hands sufficient funds, the proceeds of sales of property under an execution, to pay the plaintiff’s judgment in full, was served with a notice by the trustee under a trust agreement purporting to have been signed by plaintiff, under which the trustee claimed to be entitled to the money due on the plaintiff’s judgment and execution. The trustee denied that the trust agreement had been abandoned, as claimed by plaintiff. Held, that a motion by the sheriff for an order permitting him to deposit in court before the return day of the execution, the proceeds of the execution sales and be absolved from further responsibility in relation thereto, will be granted, and the issue as to the ownership of the moneys determined either in an action by the trustee to enforce the trust agreement or by an action brought by the judgment creditor, to set it aside (Pp. 211-213.)</p> <p>Had the time for the return of the execution expired, the judgment creditor’s remedy would have been either to compel a return by the sheriff under rule 6 -of the General Rules of Practice, or to bring an action for damages against him. (P. 213.)</p> <p>The mistake of entitling the motion papers, in the action brought against him as sheriff by one of the judgment creditors, is a mere irregularity which the court under section 723 of the Code of Civil Procedure may correct, where the substantial rights of other parties in interest are not affected. (P. 212.)</p> <p>The claims of the judgment and attachment creditors of the judgment debtor cannot be settled on this motion, although they have been served with notice thereof, for the right of the party claiming the money being in doubt, the court will relegate her to her action. (Id.)</p>

<p>Application by a trustee to sell certain real estate.</p>

<p>Mandamus — when denied against comptroller of the city of New York — contracts — municipal corporations — fraud — Greater New York Charter, §§ 149, 419.</p> <p>Mandamus lies against public officers to compel the performance of ministerial duties which are clearly absolute and imperative. (P. 217.)</p> <p>Where although the various engineers and auditors whose duty it is, as a condition precedent to the issuance of a warrant of the city of New York on account of work done pursuant to a municipal contract involving an expenditure of more than $1,000, to examine into the matter, have certified that work of the character and quantity entitling a contractor to receive a progress payment in a certain sum, has been done, the city comptroller may delay payment pending an examination by him under section 149 of the Greater New York Charter of the contractor under oath with respect to facts and circumstances surrounding the public letting of the contract, in order to determine whether it was of the character provided in section 419 of the Greater New York Charter, and whether there was collusion in the bidding or fraud in the performance of the contract. (Pp. 222, 223.)</p> <p>Where the contractor refuses to fully submit to such an examination, his application for a writ of peremptory mandamus to compel the issuance of the warrant will be denied as matter of discretion. (P. 225.)</p> <p>The exception in said section 149 of the Greater New York Charter which refers to “ claims arising under the provisions of contracts made at public letting in the manner provided by section 419 .of this act” was intended only to prevent an inquiry into the manner in which a contract validly entered into by the city has' been performed, and not to one where the circumstances indicate that the contract originated in fraud; the exception, therefore, is not controlling in the present case. (P. 224.)</p>

<p>Parent and child — father cannot be released by separation agreement with wife from obligation to support Ms infant child — executors and administrators — claim against decedent’s estate for support of an infant—accounting — Code Civ. Pro. §§ 2680, 2681.</p> <p>The father of an infant is primarily liable for its maintenance, and even though by the terms of a separation agreement the mother assumes liability for the infant’s maintenance, during her life, the obligation of the father continues after the death of the mother until the child becomes of age.</p> <p>A separation agreement in terms released the father from all claims for the support and maintenance of his infant son during the mother’s life. At her death the son went to live with his uncle who, after diligent search, was unable to locate the father. The father’s will made no provision for the child who is still a minor. The uncle presented to the executor of the father’s estate a duly verified proof of claim for the maintenance, education and support of the infant son for the six years next succeeding the death of his mother. No notice was taken of the claim except by reference in the account of the executor, filed nearly a year after the presentation of the claim. Prior to the institution of a proceeding for the judicial settlement of the accounts of the executor, to which the uncle was not made a party nor included as a creditor of the estate, an action to recover the amount of the claim so presented was brought by the uncle on the theory that the debt sued on was based upon a claim or debt against defendant’s testator as provided by sections 2680 and 2681 of the Code of Civil Procedure and the separation agreement was pleaded in bar. It appeared that no part of the money given by the father to the mother for the support of herself and child, at the making of the separation agreement, remained unexpended at the death of the mother who did not leave sufficient funds to bury her. Held, that the separation agreement did not release the father from the payment of plaintiff’s claim, was not a bar to the action and that the plaintiff was entitled to judgment for the full amount claimed, with interest from the date of grant of letters testamentary.</p>

<p>Constitutional law — unconstitutionality of Laws of 1919, chap. 459 — contracts — statutes — jurisdiction — Court of Claims — State Constitution, art. Ill, §§ 19, 28.</p> <p>Chapter 459 of the Laws of 1919, in terms conferring upon the Court of Claims jurisdiction to hear claims of certain highway contractors for losses due to increased cost of labor, material and transportation of material resulting from war conditions, is in violation of section 19 of article III of the State Constitution providing that the legislature shall neither audit nor allow any private claim or account against the state; and it is also in violation of section 28 of the same article providing that the legislature shall not grant any extra compensation to any contractor. (Smith, J., dissents.)</p> <p>An advertisement for letting of a highway contract was published once between April 6 and April 17, 1917, namely, on April 16, 1917. The date therein advertised for the letting was May 7, 1917. Claimant’s bid was dated May 7, 1917, and the contract was executed on May 9, 1917. Reid, that the contract did not come within the terms of chapter 459 of the Laws of 1919.</p> <p>The words in section 6 of the act “ advertised for letting between April 6, 1917, and April 17, 1917,” relate to the advertised date of letting and not to the date of advertising.</p>

<p>Claim for salary as special agent of the state commission of excise.</p>

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

Proceeding under section 2697 of the Code of Civil Procedure by the. executor of the last will and testament of Ella J. Miller, deceased, for an order of this court directing the executor to execute and deliver a deed.

Judicial settlement of accounts of temporary administratrix involving also the disposition of the proceeds of the sale of certain real éstate for the payment of debts. George F. Sullard, a resident of the town of Franklin in the county of Delaware, disappeared on the 27th day of June, 1916, and has not since been heard from. On the 15th day of July, 1916, his wife, Jane M. Sullard, was appointed temporary administratrix of his estate.

Judicial settlement of account by executor of deceased executrix, in which, proceeding judicial construction of the will of David Fredenburg is involved. The last will and testament of David Fredenburg, a resident of the town of Roxbury, Delaware county, was admitted to probate January 3, 1903, and letters testamentary issued to Etta Fredenburg, the wife of the testator, the executrix named in said will.

<p>Transfer tax — what subject to — estates in expectancy — wills — motions and orders — life estates — invalid exercise of power of appointment.</p> <p>The will of a decedent, who died in 1904, directed the division of his residuary estate into two parts, the income from one to be paid to his son for life, and on his death the share to pass to his issue. In case no children survived the son, then the income was to be paid to decedent’s daughter during her life, and upon her death the share to pass to her issue, and if no issue, then to whomsoever she should appoint by her will. Alternative provision was also made in respect to the other half, the income from which was to be paid to the daughter. She died without issue in 1913, leaving her residuary estate to her brother who died testate in 1918. In an action by the executors of the son for the settlement of his account as trustee under the will of his father, it was held that the attempted exercise by the son, in his will, of the power of appointment given to him under his father’s will, was invalid, and that there was a reversion in the estate of the father which passed as if he died intestate, because no provision was made for the disposition of the remainders in case of the failure of the exercise of the power of appointment. It was also held that the powers were contingent because they might be defeated if either of the children of the father died leaving issue. In the transfer tax proceedings in the estate of the father the appraiser found the value of the life estates of the son and. daughter, but suspended taxation on the remainders because of the powers of appointment thereover, and the order entered! on the appraiser’s report contained no reference to the remainders. Held, that a contention of the executors of the-father’s estate that the latter part of section 220(5) of the Tax Law (Laws of 1897, chap. 284) providing for the taxation of the non-exercise of the power in the donee’s estate, which was in effect when the father died but repealed by chapter 732 of the Laws of 1911, which was in effect prior to the death of the son, exempted the non-exercise of the power from taxation, .could not be sustained, .an/l since no transfer took place in the donee’s estate the legislature was without power to tax the property in his estate, the transfer tax must be paid on the only transfer effected, which was in the donor’s estate; hence the taxation of the estates in expectancy was held in abeyance, and they may be presently taxed against the persons in whom they vested in possession and enjoyment on their full, undiminished value.</p> <p>An application to vacate an order appointing, a transfer tax appraiser on the ground that the estate of the decedent herein was not subject to further transfer tax, treated as a motion to fix the tax without the appointment of an appraiser, and the order entered will provide for vacating the order heretofore made appointing the appraiser.</p>

<p>Adoption — when application by second husband of mother for adoption of her child will not be granted against the opposition of the father — divorce — husband and wife — Domestic Relations Law, § 111(3).</p> <p>The statute (Domestic Relations Law, § 111(3)) still provides that the consent of a parent who has been divorced because of Ms or her cruelty or adultery is unnecessary in adoption proceedings.</p> <p>But where in a wife’s action for a divorce she was awarded the custody of her six-year-old daughter with provision that the defendant should be entitled to visit her once a week, an application by the husband of the mother for the adoption of the child will not be granted against the opposition of the father, as the effect of granting the adoption would be to terminate, without legal reason, the natural rights of the father.</p>

<p>Lease — construction of — personal covenants — landlord and tenant — cancellation clause — summary proceedings — evidence.</p> <p>If there is any doubt or uncertainty as to the meaning of a lease, it will be construed in favor of the tenant. (P. 318.)</p> <p>A lease not in terms providing that the conditions and covenants thereof should bind the legal representatives, heirs and assigns of the parties, contained the following:</p> <p>“ Said landlord reserves the right to terminate this lease and the term thereof at any time after May 1, 1920, in case of a bona fide sale of the property upon giving 90 days’ notice in writing to said tenant, addressed to said demised premises, of his intention to so terminate the same, and this lease and the term thereof shall cease, determine and end at the expiration of 90 days from the day when such notice is given.” Held, that the covenant contained in said clause did not run with the land but was purely personal to the landlord and he having died without having exercised the privilege to terminate the lease, it could not be exercised by any subsequent grantee of the premises. (Pp. 317, 318.)</p> <p>The present landlord in a summary proceeding against the tenant as a holdover after service upon him of the ninety days’ notice called for by the lease, having failed to establish that the conveyance of the premises to said landlord by the grantee of the executors of the original landlord, was a bona fide sale which would entitle the petitioner to any rights under the cancellation clause, even if it were held that the covenant was one running with the land, the tenant is entitled to a final order dismissing the proceeding upon the merits. (Pp. 320, 321.)</p> <p>The deposition of the agent of the landlord, who as broker negotiated the lease with the tenant, was inadmissible in evidence, the provision of the lease not being ambiguous. (Pp. 319, 320.)</p>

<p>Motion for a bill of particulars in an action for separation.</p>

<p>Motion to overrule demurrer.</p>

<p>Negotiable instruments — check drawn in Mexico and payable in New York on condition considered to be a Mexican transaction — when defendant entitled to judgment.</p> <p>A cheek written in the Spanish language and payable in dollars in New York city, was made by defendant, a firm of bankers in Mexico, and there delivered to the payee upon the condition in writing that if a draft given to defendant by the payee at the time, was not paid, the check was to be void and of no value. The draft was not paid, and payment of the check was stopped. In an action on the cheek, which came to plaintiff’s assignor by indorsements made in Mexico, defendant pleaded a breach of the condition upon which the check was given, and all the facts showed that the case presented a Mexican transaction as to all parties except the drawee of the cheek. Held, that New York law does not apply and defendant is entitled to judgment.</p>

<p>Application for an alternative writ of prohibition directed to the public service commission of the state of New York for the second district, and the New York State Railways, commanding them and each of them to desist and refrain from any further proceedings in the matter of the application of the New York State Railways, now pending before the said public service commission, for permission to increase its rate of fare to ten cents in the city of Utica. '</p>

Motion by defendant to set aside judgment and for order directing restitution of property taken on warrant of attachment.

<p>Action to restrain the collection of a judgment, etc.</p>

<p>Statute of Frauds — sale of real estate — insufficient memorandum — contracts — specific performance — when complaint dismissed.</p> <p>Where by an oral contract for the purchase of real estate it was agreed that the balance of the purchase price, after certain cash payments, should be paid by plaintiff assuming an existing mortgage on the property and giving a mortgage for the difference, a writing which while acknowledging receipt of the cash payment, did not specify the terms of the mortgage to be given, how long it was to run or the rate of interest, is an insufficient memorandum under the Statute of Frauds and the complaint in an action for specific performance of the contract will be dismissed, but without costs.</p>

<p>Adjoining land owners — falling branch of tree — when action for trespass will not lie.</p> <p>Where during a storm of unusual violence one of the limbs of a. tree on defendant’s land was so broken that it overhung plaintiff’s land, the mere fact that defendant’s agent, an experienced man, went upon plaintiff’s land and in attempting in a proper manner to remove the limb, which as a result of his weight and movements in the tree had fallen upon plaintiff’s house, doing damage, does not constitute an actionable trespass, and defendant’s motion for a dismissal of the complaint will be granted.</p>

<p>Proceedings, on appeal from- order fixing transfer-tax.</p>

<p>Proceeding upon an accounting by a trustee.</p>

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

<p>Motion to vacate and set aside a decree admitting a will to probate.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, in favor of defendants dismissing the complaint upon the merits.

Appeal by tenant from a final order entered in favor of the landlord in the office of the clerk of the Municipal Court of the city of New York, borough of The Bronx, first district, upon direction of a verdict by the court after trial before a jury.

Appeal by the defendant from a judgment of the City Court of the city of New York, in favor of the plaintiff, after dismissal of defendant’s counterclaim upon the direction of a verdict by the court.

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

Appeal by the plaintiff, landlord, from a final order of the Municipal Court of the city of New York, borough of The Bronx, second district, in favor of the tenant, entered upon the verdict of a jury.

Appeal by defendant from an order of the City Court of the city of Hew York, denying its motion to set aside verdict in favor of plaintiff on the ground, of misconduct of a juror. The motion was heard by the same judge who tried the case. The judgment upon the verdict has been previously affirmed by this court.

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

Motion by the defendant to require the plaintiff to serve an amended complaint wherein he shall separately state and number the facts constituting the various causes of action now embraced in the complaint herein.

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

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

<p>Injunctions — when plaintiff will he granted a mandatory injunction — contracts — animals — receivers.</p> <p>Where by a written agreement of sale defendant was to have the possession and use of a valuable stallion, in California, during the seasons of 1919 and 1920, the plaintiff to have him for use in Kentucky during the seasons of 1921 and 1922, and “ thereafter on new arrangements mutually satisfactory,” the defendant has no legal right to insist upon any condition for the return of the horse to plaintiff except to ship him to plaintiff’s stock farm in Kentucky, the season of 1921 now opening.</p> <p>Where defendant flatly refuses to abide by the agreement unless plaintiff ©piers into a new agreement which is unsatisfactory to him, me^plaintiff will be granted a mandatory injunction requiring defendant to ship the horse in accordance with their agreement, and enjoining other disposition of Jain.</p> <p>giving a bond a receiver of the stallion will be appointed with power to take appropriate steps, in California or elsewhere, and to invoke the aid of any court to gain possession of the horse, and ship him to plaintiff’s stock farm/to which place he should have been sent in August or September, 1920. o</p>

<p>Certiorari — taxes — debt due from United States not exempt — when proceeding to review an assessment for personal property will be dismissed — United States Revised Statutes, § 3701 —Tax Law, § 2(8).</p> <p>The unpaid balance of a debt which was due and owing from the United States, on October 1, 1919, on certain war contracts fully performed, is not exempt from taxation under section 3701 of the United States Revised Statutes but is an asset subject to municipal taxation under section 2(8) of the Tax Law of the state, for the year 1920, as a debt due from a solvent debtor, and proceedings on a writ of certiorari under section 12 of the Tax Law, to review an assessment which disallowed the deduction of such a debt, will be dismissed.</p>

<p>Demurrer to complaint.</p>

<p>Demurrer to complaint.</p>

<p>Injunctions — summary appropriation by the state of disputed land, under Laws of 1911, chap. 746, for canal uses, is a completé answer to a motion to continue an injunction.</p> <p>The rule that a public body may not institute proceedings under the Condemnation Law to condemn property which it claims to own, is not operative as against the state in its appropriation of lands for canal terminal uses.</p> <p>Several notices sent by the state superintendent of public works to plaintiff directing him to remove that part of a building which he claims to own, but which the state claimed encroached upon canal lands, was followed by a letter of advice to the effect that in the case of plaintiff’s refusal or failure to make such removal, the department of public works would cause the same to be demolished and removed at plaintiff’s expense. Held, that the summary appropriation by the state of the portion of land in controversy, made pursuant to statute (Laws of 1911, chap. 746) for Barge canal terminal uses, was a complete answer to a motion to continue an injunction theretofore procured by plaintiff in an action brought to restrain the defendant individually and as superintendent of public works from entering upon the premises until the further order of the court.</p> <p>Plaintiff’s reliance upon the Statute of Limitations to buttress his claim, if his title should otherwise fail, does not change the situation, and he runs no hazard of being unjustly deprived of any advantage attaching to his claim of ownership to the land in dispute, and his rights are securely safeguarded against infringement without the protection of an injunction.</p>

<p>Motion on behalf of the above named defendant for leave to serve a supplemental answer herein and on behalf of Charles M. Hirschfelder and ten others for leave to intervene and become parties defendant.</p>

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

<p>Lease — when provisions of old lease not incorporated in renewal lease ■— landlord and tenant — summary proceedings.</p> <p>Where the provisions of an old lease are continued in a new lease by reference only, a provision of the former lease for a renewal of the term is not incorporated in the new lease, unless that intention is clearly expressed. (P. 451.)</p> <p>Where the right to a renewal of a five-year lease has been lost by failure to give the proper notice for an extension of the term, and the assignee of all the tenant's rights, without' objection on the part of the landlord, continues in possession of the premises for one month beyond the term, a new lease given to him for five years from the expiration of the old lease, containing no specific provision for a renewal, is only a lease for a term of five years, even though the provisions of the old lease by reference are incorporated in the new one, which declares that it was intended as a renewal of the old lease. (Pp. 450, 451.)</p> <p>Where in summary proceedings instituted against the assignee of the lease as a holdover, his only claim is that by the terms of the new lease he was entitled to at least a further term of two years, the landlord will be granted a final order awarding him possession of the premises. (Pp. 450, 452.)</p>

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

<p>Application by the special guardians of an incompetent person for the appointment of a temporary administrator.</p>

<p>Action to recover moneys.</p>

<p>Insurance (life)— when company bound by delivery of policy to assured although conditions of policy are not complied with — actions — evidence — contracts.</p> <p>The common practice of insurance companies placing in the hands of .agents policies which appear on their face to be binding contracts of insurance, but which are intended to be effective only on compliance with certain preliminary conditions, is not to be commended, and if the agent deliver the policy without requiring compliance with such conditions, the insurance company is in justice bound by the policy.</p> <p>Where in an action to recover on a policy of insurance issued by defendant on the life of plaintiff’s husband within a month of his death, the evidence is that the delivery of the policy by defendant’s soliciting agent to the insured, who never signed the application for the policy, and his acceptance thereof, were with intent that it should at once become a contract and the first premium paid later, and it further appears that the attention of the insured, though he had previously taken out other insurance with defendant, was not called to any provision of the policy requiring the signing of an application, or the payment of the first premium, or any other preliminaries, and that the agent had apparent authority to deliver the policy, it became a contract binding upon both parties, and as against the defense that the policy had no valid inception, plaintiff was entitled to recover the amount of the policy less the amount of the first premium, with interest from the date when the proceeds became due and payable.</p>

<p>Arrest — when motion to vacate an order of, denied ■—undertakings — bail — Code Civ. Pro. §§ 550,' 575.</p> <p>An undertaking on arrest given under sections 550 and 575 of the Code of Civil Procedure by the defendant in an action for separation, is in the nature of equitable bail to insure the payment of alimony as provided in the final decree, and defendant’s motion to vacate the order of arrest and to discharge the undertaking on the ground that the case has been tried and a decree entered will be denied.</p>

<p>Motion for judgment on demurrer.</p>

Motion on behalf of the defendant in the action above entitled for an order requiring the plaintiffs to amend the complaint by separately stating and numbering the causes of action 'contained in the second cause of action alleged therein.

<p>Deeds — when plaintiff entitled to judgment declaring the instrument null and void — actions—Statute of Wills — gifts.</p> <p>By a writing in the form of and acknowledged as a deed, the grantor quit-claimed to her husband, to whom the instrument was delivered on the day of its date, all real estate of which she should die seized, and also assigned to him all of her personal property. By the instrument, she reserved full control and dominion over her property, and it was left entirely discretionary with her whether at her death anything should be left to her grantee. Held, that in an action by the brother and only next of kin of the grantor, to have the instrument annulled on the ground that it was an attempt by the grantor tp dispose of her property in a form and manner contrary to the Statute of Wills, plaintiff was entitled to a judgment declaring the instrument null and void.</p> <p>The instrument, in the circumstances disclosed, can be sustained neither as a gift inter vivos nor as a gift causa mortis.</p>

<p>Claim against the state for loss of deposit by failure of bank.</p>

<p>Costs — Bronx County Court — when security for costs not required — Code Civ. Pro. § 3268 — Bronx County Act (Laws of 1912, chap. 548).</p> <p>A domestic corporation, whose principal place of business is in the city of New York, as plaintiff in an action brought in the County Court of Bronx county against one of its residents, may not be required to give security for costs under section 3268 of the Code of Civil Procedure.</p> <p>Section 3268 of the Code of Civil Procedure and the “ Bronx County Act” (Laws of 1912, chap. 548) must be read together, and a motion to vacate an order requiring the plaintiff to file security for costs will be granted.</p>

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

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

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

<p>Motion for a preliminary injunction.</p>

<p>Specific performance — land contracts — principal and agent — parol evidence — Statute of Frauds.</p> <p>While a writing, not under seal, signed for an undisclosed principal by an agent renders him personally liable, the undisclosed principal may be held liable upon proof of the signer’s agency.</p> <p>The fact that the question arises under the Statute of Frauds does not change this rule, and parol evidence to show the existence of the principal neither offends the statute nor tends to vary the terms of the writing.</p> <p>Where in a buyer’s action for the specific performance of a land contract, not under seal, all disputed questions of fact were decided in favor of plaintiff, and the only contention was whether the writing, which was signed by the agent of the seller whose name did not appear, was a sufficient memorandum under the Statute of Frauds, the rule relating to an undisclosed principal applies, the writing is sufficient, and the plaintiff is entitled to judgment against the undisclosed principal.</p>

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

<p>Negligence — action to recover for loss of a handbag — master and servant — evidence — bailments.</p> <p>While the conductor was examining and stamping the tickets of plaintiff, a Pullman passenger, the porter carried into the car plaintiff’s luggage, consisting of overcoat, portfolio and handbag, and when not to exceed two minutes later plaintiff went into the ear he found only his overcoat and portfolio. In an action against the director-general of railroads,' as agent, to recover for the loss of plaintiff’s handbag through the alleged negligence of defendant’s servant, it appeared that while the examination of plaintiff’s tickets was in progress the porter, whom it did not appear was a servant of defendant, came out of the ear empty handed and left after being tipped by plaintiff. Held, that it could not be assumed that the bag was left in the custody of defendant so as to make it liable as an insurer.</p> <p>- There being no' basis in the evidence for a finding of negligence on the part of defendant a judgment in favor of plaintiff will be reversed and the complaint dismissed.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, in favor of plaintiff, and dismissing defendant’s counterclaim.

<p>Appeal from a judgment of the City Court of the city of New York, entered November 8, 1920, dismissing the complaint and awarding the defendants $322.35 costs.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Bronx, second district, in favor of plaintiff, 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, first district, dismissing the complaint at the close of the plaintiff’s case.

<p>Negotiable instruments — promissory notes and trade acceptances — corporations — evidence.</p> <p>Where at the commencement of actions on promissory notes and trade acceptances, the corporation maker was in bankruptcy, the individual defendants, who were sought to be held as makers and indorsers, in support of their contention that their initials on the notes were neither intended nor understood by plaintiff to be other than part of the corporation signature, are entitled to show that by a resolution of the corporation adopted long prior to the making of the notes and acceptances in question, it had been determined that no signature of the corporation to any negotiable paper would be honored or paid unless the same was initialed by said individual defendants, and that the banks were so notified and as matter of fact had refused to pay notes made by the corporation to plaintiff because of the lack of such initials, and the exclusion of the evidence was reversible error for which judgments in favor of plaintiff will be reversed and new trials ordered.</p>

<p>Appeal by defendant from judgment of the Municipal Court of the city of New York, borough of Manhattan, eighth district, in favor of the plaintiff.</p>

<p>Service — substituted — Municipal Court of the city of New York ' — corporations — appeal.</p> <p>The Municipal Court of the city of New York has no power to make an order for substituted service of the summons on a corporation defendant.</p> <p>An appeal lies from such an order and it and the order denying the motion to vacate the judgment entered on defendant’s failure to appear will be reversed and the motion granted.</p>

<p>Motion for a bill of particulars.</p>

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

<p>Religious corporations — when application for leave to mortgage real property must he on consent of majority of members.</p> <p>The trustees of a religious corporation having a congregational form of government have no power to initiate proceedings to sell or mortgage the real property of the corporation without the consent of the members.</p> <p>Under the present Religious Corporations Law such consent of the members given by a majority vote at a meeting, or in some manner in accordance with legally adopted by-laws, is requisite to authorize the trustees to make such an application.</p> <p>The application herein making no reference to any such bylaw now in force will be denied with leave to renew on further papers.</p>

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

<p>Contracts— equitable interpretation.</p> <p>Conveyance — reservation of rent and right of re-entry for nonpayment in perpetual leases creates an estate upon condition —■ relationship of landlord and tenant — tenant estopped from asserting rights by prescription.</p> <p>In the interpretation of a contract the court will endeavor to give it the construction most equitable to both parties instead of a construction which will give one of them an unfair and unreasonable advantage over the other.</p> <p>Where a conveyance of land to the grantee, his executors, administrators and assigns forever, contains a reservation of perpetual rent, and the right of re-entry for non-payment, the estate created is upon condition and not in fee simple. Such a conveyance creates the relationship of landlord and tenant, and the tenant is estopped from asserting any rights by prescription.</p> <p>In an action by the purchaser from the tenant of lands held under such perpetual leases, where the tenant had defaulted in the payment of the rent and the landlord and tenant had entered into a contract, after such default of which the purchaser had knowledge, held, that the rights of the purchaser were determined by the contract which, fairly construed, limited the purchaser to the amount of water power fixed in the leases and described in the contract and excluding certain excess water power claimed by prescription and estoppel, and that defendant was entitled to a dismissal of the complaint and to an affirmative judgment on its counterclaim cancelling and annuling the leases pursuant to such contract.</p>

<p>Application for a writ of mandamus, either peremptory or alternative, commanding the above named county clerk, among other things, to use at the trial term of the Supreme Court, to be held in the county of Seneca on the first Monday of March, 1921, only the lists of names of grand and trial jurors that have or may be drawn from the north jury district of said county and to disregard the lists of jurors drawn from the entire county.</p>

<p>Transfer tax — when corporate trustee not exempt under section 221 of the Tax Law.</p> <p>The Title Guarantee and Trust Company is not in any sense or for any purpose a corporation belonging to any of the classes mentioned in section 221 of the Tax Law, and a bequest to said company, as trustee, to expend the income for an obviously educational and charitable purpose, is subject to a transfer tax.</p>

<p>Decision on motion to direct a verdict.</p>

<p>Mandamus — who entitled to a peremptory writ of — licenses — taxicabs—trade marks — injunctions—Code of Ordinances of city of New York, art. 8, chap. 14.</p> <p>While mandamus will not lie to compel a public officer to exercise a discretionary power, yet if his action in a given matter is in a legal sense arbitrary, tyrannical or unreasonable, or is based upon false information, the relator may have a remedy to right the wrong which he has suffered. (P. 658.)</p> <p>The provisions of article 8, chapter 14, of the Code of Ordinances of the city of New York not only indicate with accuracy the function of the commissioner of the department of licenses in regard to the issuance of licenses to operate taxicabs as public hacks for hire, but also suggest the reasonable limitations thereon to be the ascertainment of the safety and fitness of cab and driver. (P. 654.)</p> <p>Whether vehicles infringe upon patents or trade marks or involve possibilities of unfair competition with other instrumentalities of transportation is entirely outside of the purview of the commissioner’s duties. (Id.)</p> <p>To a petition for a writ of mandamus to compel the commissioner of the department of licenses of the city of New York to issue to relators licenses to operate their taxicabs as public hacks for hire, he made a return that having learned that the courts had established for the "Twentieth Century Brown & White Taxicab Association, Inc.” the right to use the colors brown and white in a particular combination and scheme, he had, in view of the facts and adjudications, and actuated solely by a sense of public duty, refused to issue licenses to others operating brown and white taxicabs, in the interest of and to conserve the public welfare, and to protect the public against the deception arising out of such simulation. Held, that it being quite apparent that the adjudications in the actions which terminated in injunctions in favor of the said association, did not establish its right to the combination of brown and white colors, except against the particular defendants in those suits, the statements in the return to the petition for the writ indicated a radical misconception of the significance of said adjudications. (P. 655.)</p> <p>The decision of said commissioner refusing to grant taxicab licenses to relators was based solely on the adjudications in favor of the Brown & White Association. There was no pretense that the public is otherwise injured by the competition of relators and the various affidavits indicated that the brown and white color is understood by the public to mean that cabs so painted charge a lower rate than ordinary cabs. Held, that the relators who charge such lower rates were entitled to a peremptory writ as applied for.</p>

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

<p>Injunctions — when will be granted—labor unions—evidence — ships and shipping — conspiracy — United States Shipping Act (39 U. S. Stat. at Large, 728), §§ 14, 16 — United States Criminal Code, § 37.</p> <p>In an action by a large exporter of lumber at New York to restrain a course of conduct which, if persisted in, would inevitably bring financial ruin upon the plaintiff, some of the defendants, representatives of a labor union, openly stated that there was an avowed purpose on its part to force plaintiff to unionize its plant. This plan could not effectually be carried out without the cooperation of such of the defendants as were the owners or agents of steamship companies which under section 14 of the United States Shipping Act (39 U. S. Stat. at Large, 728), are required to serve the public without discrimination. While there was no proof of an agreement between the representatives of the steamship companies and the union to refuse plaintiff’s product, there was sufficient evidence of their approval of, connivance at and sanctioning of the acts of the employees as to amount to an overt act on the part of the steamship companies. Held, that the various acts of the defendants alleged in the complaint amounted in law to a conspiracy. (P. 678.)</p> <p>The concerted action of the representatives of the steamship companies, who evinced no desire to receive or handle plaintiff’s lumber, and their employees, none of whom did they discharge or reprimand for discriminating against plaintiff, but openly sanctioned such conduct, leads to the accomplishment of an unlawful act; i. e., that of violating both the United States Shipping Act and section 37 of the United States Criminal Code. (Pp. 678, 679.)</p> <p>It being apparent that plaintiff will suffer irreparable damage, for which it has no proper or adequate remedy at law, an injunction broad enough to include agents, stevedores, receiving clerks, etc., will be granted against all of the defendants under section 16 of said Shipping Act. (P. 682.)</p>

<p>Judgments — proceedings for sale of infants’ real estate — title — specific performance — Code Civ. Pro., §§ 1646, 1679.</p> <p>The complaint in an action brought against infants under section 1638 et seq. of the Code of Civil Procedure to compel a determination of their adverse claims to plaintiffs’ title to certain real property set forth a proceeding for the sale of defendants’ interest in the property, alleged that a sale thereof by their mother, as special guardian, was in good faith and for full consideration, and that a reconveyance of the property to her individually, who conveyed to plaintiffs, was made in good faith “and for the interest and welfare of the defendants.” Judgment was entered in favor of plaintiffs forever barring the defendants from all claims to any estate, right, title or interest in and to the property. The vendee named in a contract for the sale of the property objected to the title as unmarketable on the ground that a finding of the court that the sale" of the property to the mother was made “in good faith and for the interest and welfare of defendants ” impressed some kind of a trust upon the property for the benefit of the infants. Held, that the answer to such contention was, that reading the quoted words in connection with the findings and judgment as a whole, which negatived any declaration of trust in favor of the infants, they meant simply that the infants’ proceeding in its'entirety, including the sale and disposition of the infants’ interest in the property, was for their interest and welfare.</p> <p>The findings of the court in the other action, that the special guardian “ duly ” sold the defendants’ interest and that such sale, which was directly approved in the infants’ proceeding, was made “ in good faith and for a valuable and full consideration ” was binding on the court in the present action and was an answer to a contention that any deed to the mother, as purchaser, was void under section 1679 of the Code of Civil Procedure, and that her deed to plaintiffs conveyed ^nothing.</p> <p>Section 1646 of the Code of Civil Procedure does fiat confer upon infants an absolute right to a new trial, and a contention that such a right was sufficient of itself to render the title unmarketable, is untenable, and in a vendor’s action to compel specific performance of a contract for the sale of the property the plaintiffs are entitled to judgment.</p>

<p>New trial — newly discovered evidence — when motion for a new trial denied — evidence — judgments.</p> <p>New trials are granted because of newly discovered evidence for the purpose of giving to a party the benefit of evidence of which he was unaware at the time of the pleadings or trial, not for the purpose of permitting a defendant to needlessly drag out a controversy.</p> <p>The essential characteristic of newly discovered evidence is that it was unknown at the time of pleading or trial, and has come to light since.</p> <p>Where the judgment in favor of plaintiff in an action against a municipality has been unanimously affirmed by the Appellate Division and leave to appeal has been denied both by the Appellate Division and the Court of Appeals, the plaintiff should not be put to the trouble and expense of a new trial simply because the defendant was unable to produce evidence, a part of its public records, of which it knew when it put in its answer and had within its control, and a motion for a new trial upon the ground of newly discovered evidence will be denied, with costs.</p>

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

<p>Executors and administrators — alien enemies — Trading with the Enemy Act, § 7.</p> <p>A proceeding under section 7 of the Trading with the Enemy Act, on behalf of an alleged widow who is a resident citizen of Germany, to revoke letters of administration granted upon the estate of her alleged husband, cannot be further prosecuted until peace is formally declared.</p>

<p>Contracts — when consignment of merchandise upon conditions not conditional sale — title in consignor — attachment—conversion— damages — Personal Property Law, § 62.</p> <p>An agreement for the consignment of merchandise upon conditions -therein stated is not such a contract for the conditional sale of goods and chattels as is required, by section 62 of the Personal Property Law, to he filed.</p> <p>Under such an agreement the title to the goods remains in the consignor and they are not subject to attachment by a creditor of the consignee.</p> <p>Where a sheriff’s jury finds that certain goods, when attached in an action against the consignee, were the property of the consignor, the plaintiff, in an action against the sheriff or his surety on a bond for a return of the goods, for a wrongful conversion, is entitled to recover as damages the highest value of the goods between the time of the conversion and the trial of the action.</p>

<p>Husband and wife — action for separation — dismissal of complaint on merits — judgment may not be amended so as to provide for education and maintenance of children — Code Civ. Pro. 5 1771 — remedy is under Domestic Relations Law, § 70.</p>

<p>Action to recover money paid for transmission by cable.</p>

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

<p>Damages — overflow of lands by reason of cloudburst — damages to crops resulting from negligence of state in operation of Barge canal, in addition to damage occurring from natural causes — claim dismissed.</p>

<p>Damages — liability of state for defective and unsafe canal bridge — absence of warning signs at either end as required by Laws of 1917, chap. 472, §§ 129, 130 — damages for loss of use of truck during repairs and for expense of repairs, allowed.</p>

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

<p>Petition" to register title to lands.</p>