Volume 115 — New York Miscellaneous Reports

<p>Demurrer to affirmative defense to first cause of action set forth in complaint.</p>

<p>Encroachments — action to remove — whén title to real property is unmarketable.</p> <p>The title to real property is unmarketable so long as the front wall of a building erected thereon encroaches two inches upon a city street.</p>

<p>Injunctions — when injunction pendente lite granted — actions — conspiracy — labor unions — pleading.</p> <p>Where the complaint of a manufacturer of dresses and a member of the “ Dress and Waist Manufacturers Association ” clearly sets forth a good cause of action against the principal, general and local officers and certain members of the “International Ladies’ Garment Workers Union,” a national organization, in charging them with conspiring to cause plaintiff’s factory to shut down and that they are wrongfully instigating the employees to quit work, the plaintiff upon all the facts alleged will be granted an injunction pendente lite as it appears that the complaint sets out a cause of action against all of the members of the union.</p>

<p>Motion for an injunction pendente lite and motion to intervene.</p>

<p>Workmen’s Compensation Law, § 29 — when awarding compensation is decisive and binding — election.</p> <p>Pleading — when motion for judgment sustaining a demurrer to separate defense granted — negligence — award.</p> <p>Under section 29 of the Workmen’s Compensation Law, as amended in 1917,. it is not the election to claim compensation thereunder but the actual awarding of it, which is decisive and binding.</p> <p>Where in an employee’s action for personal injuries alleged to have been caused by the negligence of the defendant the answer pleads as a separate defense that plaintiff made a claim for and accepted compensation from Ms employer, but there is no allegation that any award was ever made to plaintiff under the statute, a motion for judgment sustaining a demurrer to the separate defense will be granted.</p>

<p>Court of Claims — jurisdiction — failure to file notice of intention in time — claim dismissed — claims — Code Civ. Pro. § 264.</p> <p>A failure to file with the clerk of the Court of Claims and 0</p> <p>the attorney-general a written notice of intention to file a claim under a contract with the state lunacy commission for building construction relating to a hospital, as required by section 264 of .the Code of Civil Procedure, is a jurisdictional defect which precludes a determination of the claim on its merits whether otherwise valid or not.</p> <p>Where, therefore, the claim herein, if it accrued at all, accrued previous to August 19, 1913, the filing of a notice of intention on February 19, 1914, comes too late, and the claim must be dismissed for want of jurisdiction.</p>

<p>Mowion to dismiss claim.</p>

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

<p>Application in a probate proceeding requiring contestants to deliver a bill of particulars.</p>

<p>Associations — unincorporated — actions against — pleading — injunctions— when motion for judgment on the pleadings granted — Code Civ. Pro. § 1919.</p> <p>In an action brought under section 1919 of the Code of Civil Procedure against the president of an unincorporated association on any cause of action upon which plaintiff may maintain such an action against all the associates, the court must find upon allegations and proof that all the members of the association are liable.</p> <p>Where in such an action brought against one individually and as president of the “Amalgamated Clothing Workers of America ” and against others individually and as officers, agents or employees of the organization, the complaint alleges “ that all of the defendants herein have combined and conspired and agreed to carry out all of the aforementioned purposes * * * by their acts and conduct,” and that they “ are wrongfully and unlawfully * * *■ instigating plaintiff’s employees to cease work and v * * have caused a general strike against manufacturers of clothing in the city of New York and * * * are instigating persons to picket plaintiff’s factories and coercing * 3‘ 31 and intimidating plaintiff’s employees,” and a particular allegation of the pleading gives irrefutable evidence that the pleader intended the term “defendants” to apply to the persons actually named as such in the caption, in contradistinction to the term “all members of the associationv and that when the pleader intended to designate the latter class he so expressly denominated them, but there is no allegation that all the members of the defendant association participated in alleged overt acts or purposes of the association, authorized or ratified the same or are chargeable with knowledge thereof, the complaint, considering the allegations thereof as though they Were all to he considered as bearing solely upon the right to an</p> <p>injunction, fails to state a cause of action and defendant’s motion for judgment on the pleadings will he granted, with leave to plaintiff to plead over, if so advised.</p>

<p>Contracts — sale of real property — specific performance — title — notice — rescission — lease — insurance (fire).</p> <p>A contract for the sale of real property under which title was to be closed on or before June 1, 1920. upon a five days’ notice from the purchaser, provided that possession was to be delivered to him at the time of the settlement subject to an existing lease which contained a clause that if the building should be rendered untenantable by fire the rent should cease until the building coulcl be put in complete repair. On April 10, 1920, while the seller was still in possession of the premises the building thereon was substantially damaged by fire. On May 28, 1920, about two weeks after the seller’s attorney had written to the attorney of the purchaser that it was not the seller’s intention to commence rebuilding until the purchaser had finally indicated his decision to accept the property or rescind the contract, the seller by letter refusing to extend the time of settlement, stated in substance that inasmuch as the purchaser’s time limit for giving the notice of his readiness to settle had expired, defendant considered the contract broken by the purchaser. In an action for specific performance with abatement from the purchase price on account of the damage caused by the fire, held, that the five days’ notice was required only in case the plaintiff availed himself of the implied privilege of closing the title before June first, the law day of the con-</p> <p>tract, and that defendant’s repudiation of the contract by the letter of May twenty-eighth was without legal justification.</p> <p>The premises having been restored by defendant at an expense concededly less than the insurance collected, plaintiff, who is willing to take the premises as they now are, was entitled as of right to a conveyance thereof, upon payment in full of the purchase price.</p> <p>Ho provision having been made covering the contingency of the loss of rent caused by the fire, the parties in that respect should be left as they are.</p>

<p>Application for an injunction. ■</p>

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

<p>Application for a temporary injunction.</p>

<p>Proceedings on application of a guardian of an infant for appointment as administrator of the estate of the infant’s mother.</p>

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

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

<p>Bridges — statutes — right of city of New York to operate railroad over Williamsburg bridge — municipal corporations — railroads— constitutional law—Greater New York Charter, as amended in 1901, § 595(5)—Public Service Commissions Law, § 53 — Railroad Law, § 22 — Laws of 1916, chap. 528 — Laws of 1897, chap. 663.</p> <p>The provision of section 595(5) of the Greater New York Charter, as amended in 1901, by which the commissioner of bridges, who still had the management and maintenance of the New York and Brooklyn bridge and control of the operation of the railroad thereon, was given in general terms the management of all other bridges, was followed by an express provision abolishing the Williamsburg bridge commission, and all its powers and duties, one of which was to operate and authorize to be operated a railroad over said bridge, were duly transferred to the commissioner of bridges of the city of New York and by a later statute (Laws of 1916, chap. 528) to the commissioner of plants and struetúres of said city. (Pp. 101, 102.)</p> <p>The legislative act (Laws of 1897, chap. 663) which provided tb9t the trustees of the Brooklyn bridge might continue tq</p> <p>maintain and operate the then present railroad thereon did not limit the power already delegated the Williamsburg bridge</p> <p>1 commission, which in turn is devolved upon the present commissioner of plant and structures, and the city ' of New York through that official has an existing right to operate a railroad on the Williamsburg bridge. (P. 102.)</p> <p>Dilluvio v. City of New York, 73 Mise. Rep. 122, distinguished. (P. 103.)</p> <p>The legislature having granted to the city of New York the right to operate a railroad on said bridge and there being no place thereon for the storage of cars it must be held that as a necessary implication to such grant the city may erect a barn underneath the structure of the bridge and by necessary trackage connect the existing bridge tracks with the barn, and if in the course of making such connection it is necessary to cross the tracks of the defendant railroad company now operating over the bridge as licensee only and free to abandon the bridge service at any time, the law allows such crossing over. (P. 104.)</p> <p>An application by the city of New York under section 22 of the Railroad Law for the appointment of commissioners to determine the compensation, if any, to be awarded defendant as a condition of constructing a cross over on its tracks, etc., will be granted and the obtaining of a certificate under section 53 of the Public Service Commissions Law is not a necessary prerequisite. (Id.)</p> <p>The legislature has constitutional power to grant to a municipal corporation the right to operate a railroad on the Williams-burg bridge, which, besides being an aerial highway, has been declared by statute to be a public highway. (P. 105.)</p>

<p>Motion for permission to serve an amended answer and for alimony and counsel fee.</p>

<p>Application for an order of discovery.</p>

<p>Mandamus — when writ will issue upon the application of a private citizen requiring the mayor of a city to enforce section 26 of the Transportation Corporations Law — Transportation Corporations Law, § 26 — Second Class Cities Law, §54 — Public Service Commissions Law, §§ 48, 57 — Penal Law, § 29.</p> <p>Where a clear legal right exists and there is no other adequate remedy, a writ of mandamus may issue in the discretion of the court. (P. 148.)</p> <p>A mandamus proceeding to enforce a right in which the general public is interested, to wit, that the streets of a city shall remain' unobstructed and unencumbered, may be maintained by a citizen and resident of the city. (Pp. 127-134.)</p> <p>Where it is made to appear that in the city of Albany, for at least six weeks, more than 500 motor vehicle lines of the character described in section 26 of the Transportation Corporations Law, which in the interest of the public welfare prohibits1 bus lines or any vehicles carrying passengers at a rate of fare of fifteen cents or less for each passenger within the limits of the city, have been and are now being unmolestingly operated upon the public streets of the city without the consent of the local authorities and without a certificate of public necessity and convenience from the public service commission, as required by said section of the Transportation Corporations Law, and it further appears the mayor of the city, one of whose duties under section 54 of the Second Class Cities Law is to see that the laws of the state are executed, has openly and publicly announced his positive refusal to perform such duty, a writ of mandamus, upon the application of a citizen of the state who is also a resident of the city, will be granted requiring the said mayor to direct the commissioner of public safety, who is neither a proper nor necessary party to the present proceeding, to enforce by action of the police department of the city, the provisions of section 26 of the Transportation Corporations Law. (Pp. 121-123, 150-151, 155.)</p> <p>In such case, neither a direction of the public service commission to its counsel to proceed under .section 48 or section 57 of the Public Service Commissions Law, which means that each individual operating a jitney unlawfully must be proceeded against separately, or to conduct a summary proceeding in the Supreme Court to have the unlawful act enjoined, can, 'in the extraordinary situation presented here, be deemed an adequate remedy. (Pp. 148-150.)</p> <p>Violations of the provisions of section 26 of the Transportation Corporations Law are punishable as misdemeanors under section 29 of the Penal Law. (P. 139.)</p>

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

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

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 the plaintiff after trial by the court without a jury.

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

Appeal by plaintiff from judgment and order of the Municipal Court of the city of New York, borough of Manhattan, first district, dismissing his complaint on the ground that the Municipal Court had no jurisdiction of the action.

Appeal by the landlord from an order dismissing the landlord’s petition in the Municipal Court of the city of New York, borough of The Bronx, second district, for the removal of the tenant as a holdover.

<p>Landlord and tenant — monthly tenancy — when landlord may recover a fair and reasonable rent from tenant holding over — service of notice not a condition precedent — Laws of 1882, chap. 203, as amended by Laws of 1920, chap. 209.</p> <p>Where a monthly tenant of premises in the city of ¡New York holds over after the expiration of his term, without the permission of his landlord, the landlord under chapter 944 of the Laws of 1920 may recover a fair and reasonable rent while the tenant continues in possession of the premises, and a dismissal of the complaint on the ground that service upon the tenant of the notice specified in chapter 203 of the Laws of 1882, as amended by chapter 209 of the Laws of 1920, was a condition precedent to the maintenance of the action, is error for which a judgment entered in favor of the tenant will be reversed and a new trial ordered.</p>

Appeal by the tenant from an order of the Mmoicipal Court of the city of New York, borough\ of Manhattan, seventh district, entered in favor of the landlord.

<p>Landlord and tenant — apartment houses — different rentals for similar apartments in same building — a tenant is not entitled to a reduction in his rent below the reasonable value of his apartment because other tenants voluntarily pay sufficiently high rents to produce a fair return upon the whole property — a landlord still has the right to accept from a tenant, willing to pay, the rent demanded.</p> <p>Notwithstanding the recent legislative enactments, a landlord still has the right to accept from a tenant, who is willing to pay, the rent demanded for premises in the city of New York.</p> <p>The landlord of an apartment house in the city of Mew York may reasonably, in proper circumstances, enter into agreements of lease with various tenants at different rentals for similar apartments in the same house, and all the leases are enforceable unless any particular tenant can show that he is actually injured by the landlord’s use of his property, and has been compelled to enter into a lease which by the terms thereof is oppressive and unreasonable, and the mere fact that the landlord is receiving from certain of the tenants a rent sufficiently high to afford him -an adequate return upon his capital investment, does not entitle the other tenants to a reduction below the amount at which similar apartments in the neighborhood are leased and below the rate which, if generally applied throughout the house, would afford the landlord a fair return on the whole property.</p> <p>Where such a landlord does not obtain more than a reasonable return upon his investment as a whole but having' acted reasonably in fixing the widely varying rents for the various tenants, has compelled no tenant to enter into a lease which is oppressive or unreasonable, the tenant paying the higher rent has suffered no injury for which the legislature has attempted to provide a remedy.</p> <p>Even though the court might consider the rent reserved in some of the leases unreasonable, only the tenant who pays the same is aggrieved, and no other tenant can compel the landlord to allow him to remain at a lower rental than would otherwise be reasonable, merely because the landlord will obtain a fair return upon his whole investment through the higher rents paid by other tenants.</p> <p>Where in an action for rent the court upon evidence as to the value and maintenance of plaintiff’s apartment house and the rents received therefrom, refuses to permit the landlord to raise the rent of defendants in spite of the fact that the evidence showed that all other tenants in the building are paying the same rent for similar apartments, as the landlord has demanded and seeks to recover of defendants, and that such rental is not higher than the prevailing rate for apartments of the same class in that neighborhood, and there is no evidence from which an inference may be drawn that the rent fixed by the trial justice is fair and reasonable, a judgment in favor of defendant will be reversed and a new trial ordered.</p> <p>Manhattan, fourth district, entered in favor of the defendants.</p>

Appeal by the landlord from an order of the Municipal Court of the city of New York, ninth district, granting the tenant’s motion to dismiss the petition of the landlord in summary proceedings.

<p>Habeas corpus proceedings.</p>

<p>Demurrer to complaint.</p>

<p>Option for sale of real estate — when assignable — lease — consideration— Personal Property Law, § 41 — Code Civ. Pro. § 840.</p> <p>Though an option for the sale of real property, until accepted, is not a contract for its sale, the option is assignable under</p> <p>section 41 of the Personal Property Law unless the parties by mutual agreement otherwise provide.</p> <p>The fact that the option was contained in a lease constitutes a good consideration for it, and, where a modification of the option reducing the purchase price and reciting that it was made in consideration of the original lease and the sum of one dollar, is under seal, a consideration, under section 840 of the Code of Civil Procedure, is presumed.</p>

<p>Action to reform mortgage — priority of mechanics’ liens — recording.</p> <p>The right to have a mortgage containing no description of the real property intended to be covered thereby, reformed in that particular, is subject to the rights under a mechanic’s lien filed against the property after the mortgage was recorded.</p>

<p>Fraudulent conveyances — debtor and creditor — judgments — bona fide purchaser for value — evidence — Beal Property Law, § 266 — Code Civ. Pro. § 1251.</p> <p>Under section 263 of the Real Property Law a conveyance of real property made by a debtor in fraud of creditors prior to the docket of a judgment against him is void, and the lien of the judgment, by virtue of section 1251 of the Code of Civil Procedure, attaches notwithstanding such conveyance.</p> <p>Where, however, it appears that before plaintiff’s judgment had been docketed the fraudulent grantee of the judgment debtor, a brother-in-law, conveyed the property to one who it was conceded paid full value for it, and in an attack upon the last conveyance on the ground that the grantee, who had made payments on account of the purchase price before he had any notice which could possibly be said to charge him with bad faith, and for which in any event he would have a lien on the property, did not take the conveyance in good faith, it appears that the judgment debtor, representing to said grantee that he owned the property, entered into a contract to convey, and, upon a search of the title, the prior conveyance was disclosed, the judgment debtor said that the property was held for him by the grantee therein, who signed the deed to the last grantee, who paid the full consideration to the judgment debtor, the proof is insufficient to establish that the .last grantee was not a bona fide purchaser in good faith, and he comes within section 266 of the Real Property Law and the conveyance to him is good.</p>

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

<p>Transfer tax — appraisal — when accrued interest on investments should not he included in valuation — Tax Law, § 221-h.</p> <p>In fixing under section 221-b of the Tax Law, the additional tax of five per cent on investments left by a decedent who died in May, 1919, it is improper to include in the valuation, the accrued interest on the investments to the date of decedent’s death.</p> <p>The system of transfer tax appraisers in reporting valuations, to include the market value of investments plus interest, is one of convenience only, and cannot be used to sustain a transfer tax under section 221-b of the Tax Law.</p>

<p>Landlord and tenant — use and occupation — meaning of ‘ ‘ rents ” in section 4, chapter 944, Laws of 1920.</p> <p>Where a tenant in possession of premises in the city of New York under a lease which expired on September 30, 1920, remained in possession of the premises without any new agreement having been made, the landlord under chapter 944 of the Laws of 1920 may maintain an action against the tenant to recover the rental value of the use and occupation of the premises.</p> <p>The word “rent” in section 4 of chapter 944 of the Laws of 1920, means a reasonable return from the property.</p>

<p>Landlord and tenant — guaranty payment of rent — assignment of lease — meaning of “legal representatives”—when guarantor liable to assignee of landlord.</p> <p>The term “ legal representatives ” in a guaranty of payment of rent under a lease, is broad enough to include an assignee of the landlord’s interest in the lease.</p> <p>In the absence of proof as to the intention of the parties to a guaranty of the payment of rent under an assignable lease which binds and runs in favor of not only the landlord and the tenant but also their respective successors in interest, the guarantor is liable to the assignee of the landlord for the tenant’s default in the payment of rent, though the guaranty runs to the landlord and his “ legal representatives.”</p>

<p>Statutes — construction of — power of board of supervisors to increase salaries of county officers — County Law, § 12(5)— Laws of 1913, chap. 293.</p> <p>The legislature having failed to except from the county officers whose salaries are to be fixed by the board of supervisors under the broad conditions of section 12(5) of the County Law notwithstanding any general or special law, the office of commissioner of charities and corrections of Erie county, created by chapter 293 of the Laws of 1913 and the salary fixed thereby, it must be held that it was the legislative intent that the power to increase such salaries should remain and be exercised by the board of supervisors in its discretion, and where the manner of the exercise of such power has been lawful, the complaint in a taxpayer’s action to restrain the payment of the salary will be dismissed.</p>

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

<p>Statutes — interpretation — power of public service commission to fix telephone rates — injunctions — Public Service Commissions Law, §§ 23, 92, 97.</p> <p>The Public Service Commissions Law neither confers power upon the public service commission nor imposes the duty upon it to fix the rates which shall be charged in all eases for telephone service. (P. 267.)</p> <p>Under section 97 of the Public Service Commissions Law the commission has the legal power not only to make orders fixing maximum rates for telephone service but to abrogate such orders and consent to an increase of rates. (P. 269.)</p> <p>Under the Public Service Commissions Law the commission, aside from the power delegated to it by the legislature to fix maximum rates for telephone service, has power to consent to an increase of rates without determining what rates are reasonable and should thereafter be observed as maximum rates, when it appears that the conditions which prevailed when the earlier order was made have materially changed. (P. 272.)</p> <p>The right of the public service commission to consent to an increase in a rate previously fixed is not subject to any limitation that it shall be given only after a complete hearing sufficient to enable the commission to determine the just and reasonable rates to be charged thereafter. (P. 267.)</p> <p>An order of the public service commission fixing the maximum charges for telephone service is an attempt to predict for the</p> <p>future the charges that mil yield a fair return, and so long as the Public Service Commissions Law contains no provision that the commission may not abrogate an order made by it fixing maximum rates for telephone service or consent to an increase except as part of an order fixing new rates, the commission, pending the hearing and determination of an application for an increase in rates, may consent that the rates fixed and determined by its previous order be increased by “ certain additional percentages.” (P. 268.)</p> <p>Subject to the common law rule that no public service corporation may charge more than a reasonable rate for service, a telephone company may at will change its rates for telephone service only by filing schedules in accordance with section 92 of the Public Service Commissions Law, unless or until the public service commission has by an order fixed the maximum rate for such service in accordance with said section of the statute. (P. 267.)</p> <p>By virtue of section 23 of the Public Service Commissions Law such an order remains in force only until “ changed or abrogated by the commission,” and when such order is abrogated the right of the telephone^ company to increase its rates by filing schedules is exactly the same as before the original order was made. (P. 268.)</p>

<p>Claim for, damages sustained by reason of change in grade of a highway.</p>

<p>Transfer tax — vested remainders under trust deed — life tenant assumed to survive trust period — exemptions — Tax Law,</p> <p>§ 221-a.</p> <p>Decedent'died intestate leaving a són and daughter as her only heirs at law and next of kin. Under a trust deed of decedent a remainder was to vest when said son attained the age of twenty-five years, or upon his previous decease. At the time of the transfer tax appraisal the son was seventeen years of age. The order fixing the tax assumed that the son had reached the age of twenty-five years and considered the remainder as vested as of the date of the appraisal in the son and daughter, thereby taxing the transfer of the various funds at the minimum rate against each equally. Meld, that the tax was properly made and the appeal of the comptroller is overruled.</p> <p>Independently of the amounts received by the beneficiaries as of the date of the death of decedent, the transfers deemed to have been effective and complete as of the date of the trust deed were properly subject to a transfer tax, and under the then existing statute were entitled to an exemption bf $5,000.</p> <p>Under the amendment to section 221-a of the Tax Law by •</p> <p>chapter 664 of the Laws of 1915, the combined transfers to each beneficiary, effective at the date of decedent’s death, were entitled to but a single exemption of $5,000.</p>

<p>Landlord and tenant — effect of Eighteenth Amendment to the Constitution of the United States upon lease of premises to be used as-a “ saloon and hotel.”</p> <p>Where a ease is submitted for decision upon statements of counsel, the facts as stated by the appellant in the court below must be accepted as true on appeal.</p> <p>A covenant in a lease for five years made in 1916, of premises to be used and occupied as a “ saloon and hotel,” that the tenant will comply with all statutes “ for the correction, prevention and abatement of nuisances or other grievances ” does not cover the Eighteenth Amendment to the Constitution of the United States or any statute for the enforcement thereof.</p> <p>Before said constitutional amendment became operative the ■landlord and tenant orally agreed that after it became effective there should be a reduction in the rent, and for several months the reduced rental was paid and accepted. In an action to recover the rent for the succeeding month in the amount</p> <p>reserved in the lease, held, that the adoption o£ the said constitutional amendment created a situation not within the contemplation of the parties when the lease was made, and terminated it.</p>

<p>Telegraphs and telephones — telegraph company cannot relieve itself from the consequences of its wilful misconduct or gross negligence — liability for non-delivery of message — measure of damages.</p> <p>A telegraph company is responsible for its neglect to perform its duties to one to whom a telegram is addressed as well as to the sender, and a stipulated limitation of liability binds both. (P. 292.)</p> <p>While a telegraph company is liable for any neglect to exercise due care in the correct and prompt transmission of mes-</p> <p>sages, it may by contract limit its liability for mistakes or delay in the transmission of messages, but the general rule, irrespective of such a contract, is, that the company cannot in such manner relieve itself from the consequences of its wilful misconduct or gross negligence. (P. 293.)</p> <p>Where a telegraph company never sent a cable message delivered to it for transmission, and the failure to deliver is not shown to have been due to mistake in transcribing or difficulty is transmitting, the company is guilty of gross negligence and is not relieved by limited liability stipulations nor does a stipulation relating to the time for presentation of notice of claim, exempt it from liability. (P. 296.)</p> <p>In an action for damages for failure to transmit a cable message, brought by the addressee, it appears that a few days after the sender of the message had cabled from South America to plaintiffs in New York city an inquiry as to the price of brass tubes of a specified length and width, he sent to plaintiffs the cable forming the basis of the present suit, from which it plainly appears that the length and width of the tubes ordered were different from those contained in plaintiffs’ offer. Held, that while the message could not be held to be an unqualified acceptance of plaintiffs’ offer, it was at least a definite offer by the sender to plaintiffs contingent upon their acceptance, and that the addressee was entitled to show whether he would have accepted the offer, and that upon such testimony it became a question of fact whether he would have accepted it or not. (Pp. 297, 298.)</p> <p>This question of fact having been resolved in favor of plaintiffs they were entitled to judgment for the difference between the market price and the contract price. (P. 298.)</p>

Appeal by the plaintiff from a judgment of the Munoipal Court of the city of New York, borough of Manhattan, fifth district, rendered after a trial without a jury, dismissing the complaint. .

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 trial by the court without a jury.

<p>Appeal by plaintiffs from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of defendants, after a trial by a judge without a jury.</p>

<p>Statutes — how far Eighteenth Amendment to the Constitution of the United States and the Volstead Act abrogate state statutes — habeas corpus — Laws of 1920, chap. 911.</p> <p>The Eighteenth Amendment to the Constitution of the United States and the Volstead Act do not abrogate previously existing state statutes relative to trafficking in liquor, except in so far as they may be in open and direct conflict with the federal statutes. (P. 335.)</p> <p>All provisions of state laws which tend fairly to the enforcement of said amendment and are not in direct conflict with the Volstead Act, remain unimpaired and may be enforced by the state courts. (Id.)</p> <p>The statute (Laws of 1920, chap. 911) relating to trafficking in “ all distilled and rectified spirits, wine, fermented and malt liquors containing at least one-half of one per centum of alcohol by weight,” though not altogether in harmony with the so-called Volstead Act, is void only in so far as it conflicts with the federal statutes. (P. 337.)</p> <p>All those provisions constituting the greater portion of said statute of 1920 and which authorize the granting of a liquor tax certificate for the sale of liquor containing more than one-half of one per cent of alcohol and not more than two and seventy-five hundredths per cent, violate the Federal Constitution, and any liquor tax certificates issued thereunder are void. (Pp. 337, 338.)</p> <p>Where certain declarations within the body of said statute of 1920 show a legislative intent to give effect to the Eighteenth Amendment of the Federal Constitution and to absolutely prohibit the sale for beverage purposes of liquor deemed intoxicating, the court is justified in inferring that such was the dominating intent of the legislature; that the provisions authorizing the sale of liquors containing not more than two and seventy-five hundredths per cent of alcohol were subsidiary to the main purpose of the statute, so that even with the unconstitutional</p> <p>provisions exscinded, the legislature would still have passed the act. (P. 339.)</p> <p>Section 8 of said statute of 1920 which though providing for excise taxes on trafficking in liquors makes no provision for the sale of liquor to be drunk on the premises except, in a city of the first or second class, in a 'restaurant where meals are furnished. Meld, that as no license could legally be obtained under the statutes to sell, in such a place, liquor of any degree of alcoholic content, said section was separable from and independent of the statutory purpose to permit, under certain restrictions, the sale of so-called non-intoxicating liquors containing up to two and seventy-five one-hundredths per cent of alcohol. (P. 340.)</p> <p>An information charging relator with a violation of the statutes of 1920 is not defective because the alcoholic content of the whiskey alleged to have been sold by him was not set forth and upon a traverse to the return to a writ of habeas corpus sued out by relator pending a hearing upon the information before a magistrate he will be remanded. (Pp. 340, 341.)</p>

<p>Action for damages for breach of contract and to recover upon surety’s bond.</p>

<p>Action for specific performance of an option to purchase.</p>

<p>Constitutional law — equal protection of the laws not denied by Laws of 1921, chap. 154 — agreement between the states of New York and New Jersey pursuant to said statute is valid — injunction denied in action for abrogation of said agreement.</p> <p>Subject to the approval of the Congress any two states may enter into a joint adventure to promote the common welfare of their citizens. (P. 354.)</p> <p>The statute (Laws of 1921, chap. 154) designed to remove artificial barriers to delay in the shipment of goods existing at the port of New York and to confer special benefit upon the people of the states of New York and New Jersey, as well as the country in general, is not unconstitutional as a denial to the city of New York or its people of the equal protection of the laws, and the contention that said statute creates a new political subdivision is without merit. (Pp. 353-355.)</p> <p>Where by “an agreement entered into between the states of New York and New Jersey pursuant to said statute, they agreed to cooperate, each within its own sovereignty, and the agreement expressly limits the jurisdiction of the joint board of managers to such powers and authority as may be legally conferred upon them in conformity with the constitution of the state of New York and the constitution of the United States, it is obvious that the state of New York has parted with none of its sovereign rights nor relinquished the control over any property belonging to its people. (Pp. 354, 355.)</p> <p>A motion to continue an injunction in an action brought by the city of New York seeking to have said agreement abrogated, denied upon the merits. (P. 357.)</p>

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

<p>Foreclosure — mortgage to secure lease — when extension of payment of installment of rent will not impair obligation of guarantor.</p> <p>Where each installment of rent called for by a lease is a separate and independent demand an extension of the time of payment of one will not impair the obligation of a guarantor as to the others.</p> <p>In an action to foreclose a mortgage given to secure performance of a lease for five years from January 1, 1916, the default alleged was non-payment of the rent for the period commencing October, 1918, and terminating with the month of April, 1919, the amount thereof being in excess of the principal of the mortgage. Meld, that a letter from the lessor to the lessee granting a credit for a part of the rent from October 1, 1917, to September 30, 1918, and an extension of the time for the payment of the balance of rent accruing during that year, did not affect the rent accruing after the expiration of that period, even assuming that the letter, relied upon by defendant as a modification of the guaranty contained in the mortgage, was based upon absolute consideration.</p> <p>There being no provision of the lease restricting the assignment thereof and the language of the guaranty for the payment of rent neither contemplating nor creating a trust personal to the promisee, the guaranty was not a special one.</p>

<p>Motion to amend claim.</p>

Appeal by the landlord from an order of the Municipal Court of the city of New York, borough of Manhattan, eighth district, denying landlord’s motion for an order directing the clerk to deliver a warrant.

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

<p>Associations — unincorporated— ticker service — when no action lies against an association for damages occasioned by its incorrect report of decision of United States Supreme Court on taxable status of stock dividends — libel.</p> <p>While everyone is under moral obligation to say nothing that is not true, the law does not attempt to impose liability for a violation of that duty, unless it constitutes a breach of contract or trust or amounts to a deceit, libel or slander.</p> <p>The relation of an unincorporated association engaged in the business of supplying its subscribers with current news by a ticker service to the public, is the same as that of a publisher of a newspaper, and its duties and obligations are to be measured by the same standard.</p> <p>No action lies against such an association for damages occasioned by its incorrect report of the decision of the United States Supreme Court on the taxable status of stock dividends, by one who seeing such report in his broker’s office, sold stocks at a loss, and his complaint must be dismissed.</p>

<p>Discovery — when motion to vacate order for, granted — wills — evidence — Code Civ. Pro. § 2607.</p> <p>The proceeding under section 2607 of the Code of Civil Procedure was not intended and should not be used merely as a sort of discovery proceeding to ascertain evidence to be used in an action in another court.</p> <p>Decedent died in 1917 and his last will dated March 23, 1914, by which all prior wills by him made were revoked, was duly admitted to probate. Held, that a motion to vacate an order made in a proceeding under section 2607 of the Code of Civil Procedure directing an attorney to attend for examination concerning a will of decedent made in 1907 and to produce the document which was alleged to have been made in accordance with a contract which was alleged to have been violated in the execution of the will admitted to probate, will be granted.</p>

<p>Banks and hanking — ‘ ‘ cable transfer ’ ’ — contracts — plaintiff entitled to judgment for amount paid for cable transfer.</p> <p>The term “ cable transfer ” precludes the idea that an actual transfer of money is contemplated or intended by the parties thereto. (P. 388.)</p> <p>The seller of a “ cable transfer ” is in the position of having sold at an agreed price a credit for a sum of money payable at the place indicated in the written memorandum and the buyer has purchased a credit for such sum available at the place and for the payee named. (Id.)</p> <p>While money paid for a “ cable transfer ” becomes the money of the seller, it is still under obligation to the buyer to pay to the payee named in the “ cable transfer,” the agreed equivalent in foreign exchange of the amount received for such transfer. (Pp. 388, 389.)</p> <p>Where in an action to recover the amount paid to defendant for a “cable transfer” of 7,009 marks to a relative of plaintiff, in Poland, who at all times since the transaction has continued to reside at the address originally furnished to defendant, it appeared that the marks were never delivered although nearly a year and a half had elapsed from the time of the pur-</p> <p>chase of the “ cable transfer ” and saving clauses in the agreement on which defendant seeks to escape or limit its liabilities have not the effect claimed for them, plaintiff is entitled to judgment for the full amount demanded. (Pp. 389-392.)</p>

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

<p>Banks and banking — failure to establish credit in foreign country — exchange — evidence — plaintiff entitled to return of money paid for foreign credit with interest.</p> <p>Where the defendant bank, upon payment to it by plaintiff’s agent of the sum of $750 at the city of New York on May 10, 1916, for remittance to plaintiff at Dresden, Germany, where she then resided, undertook to establish a credit for plaintiff with a bank at Berlin, Germany, within a reasonable time, to the extent of the equivalent in German exchange of that sum when it was paid to defendant, to wit, 3,902.40 German marks, the plaintiff, notwithstanding defendant’s failure to perform its undertaking by reason of war conditions, is entitled to a return of the money with interest.</p> <p>On July 22, 1920, the defendant, in the course of a letter to plaintiff’s agent, stated that it would be pleased to complete the transaction or to refund the value in dollars at the then rate of exchange, to wit, ninety-one dollars and seventy cents. Held, that a judgment for that amount granted in an action brought while plaintiff was a resident of New York city will be modified by increasing the recovery to the full amount claimed, with interest from the date of its receipt t>y defendant.</p>

<p>Appeal by plaintiff from judgment of Municipal Court of the city of New York, borough of Manhattan, fifth district, in favor of plaintiff for $266.55.</p>

<p>Appeal by plaintiff from, an order of the Municipal Court of the city of New York, borough of Manhattan, second district.</p>

<p>Appeal from a final order of the Municipal Court, of the city of New York, borough of Manhattan, sixth district, entered in summary proceedings awarding possession to the landlord.</p>

Appeal by the plaintiffs from a judgment in favor of defendant entered upon an order setting aside the verdict of a jury in the Municipal Court of the city of New York, borough of Manhattan, sixth district, and dismissing the complaint.

Appeal by the tenant from a final order of the Municipal Court of the city of New York, borough of Brooklyn, second district, entered in favor of the landlords after a trial before the court without a jury.

Appeal by the tenant from a final order entered in the office of the clerk of the seventh district Municipal Court of the city of New York, borough of Brooklyn, in a summary proceeding for nonpayment of rent.

<p>Action for specific performance of a contract for the sale of real estate.</p>

<p>Action to recover funds misappropriated by an executor.</p>

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

<p>Stockbrokers — misappropriation of stock certificate by an executrix— right of legatee to maintain action against broker for the recovery of stock pledged as collateral by executrix— executors and administrators.</p> <p>Testator, who at his death was the owner and holder of three certificates of corporate stock for fifteen, sixty and one hundred and fifty shares respectively, bequeathed twenty-five shares to</p> <p>Ms father and twenty-five shares to his mother. One-half of the residue of Ms estate he gave to his wife with direction that the other half should be held by her in trust until his oldest child should have attained the age of twenty-one years, and that each of his children should receive a proportionate share in said one-half of such residuary estate upon arriving at a like age. About fifteen months after the death of testator his widow, the sole trustee and executrix of his estate, deposited the certificate for one hundred and fifty shares of stock with the defendant firm of stockbrokers to sell, with instructions to purchase other stock for her individual account, and to hold the stock deposited until sold as margin upon her individual purchase, and when sold, to apply the proceeds upon her own purchase of stock. The one hundred and fifty shares of stock deposited were never sold, but are now held as collateral by the stockbrokers who claim a lien thereon, to secure them for the considerable loss wMch the widow sustained in her purchase of stock through them. In an action against the firm of stockbrokers and the widow as executrix brought by the only child of testator, now of age and entitled to receive one-half of the residuary estate of his father, asking for a construction of the will and that the defendant stockbrokers be ordered to deliver to the executrix possession of the stock certificate deposited with them by her, held, that the delivery of said stock certificate for the personal use of the executrix was a misappropriation thereof, except in so far as she may have been entitled to receive a portion of the same as residuary legatee.</p> <p>When the defendant stockbrokers accepted the stock deposited by the executrix as collateral for her individual account, with the knowledge that the stock certificate was part of the estate of her deceased husband, they joined in such conversion and are answerable therefor as trustees ex maleficio.</p> <p>The plaintiff, while not legally owner of the whole fund, has a right to compel the executrix to pay to him the portion thereof to which he is entitled, and such rights having been impaired by the wrongful action of the executrix and the other defendant, plaintiff may appeal to a court of equity to right the wrong and under the authority of Van Gamp v. Fowler, 59 Hun, 311, the court has jurisdiction to give complete relief and determine the title to the fund in dispute.</p>

<p>Certiorari proceedings.</p>

<p>Criminal procedure— Supreme Court may by ex parte order remove for trial an indictment found in another court — court in which indictment was found has no further jurisdiction in the matter.</p> <p>The Supreme Court by an order made ex parte may remove to that court for trial an indictment found in the Court of General Sessions of the city and county of New York and an application for a writ of prohibition to restrain further proceedings in the court in which the indictment was found will be granted.</p> <p>If the defendants' believe that they are prejudiced by such removal of the indictment, by an order instead of a writ of certiorari, they may move to have the order vacated, but while the order stands the Court of General Sessions has no further jurisdiction in the matter.</p>

<p>Action for specific performance.</p>

Action to compel reconveyance of real property founded upon an oral agreement and for cancellation of purchase money mortgage.

<p>Appeal from an order of a city magistrate.</p>

<p>Executors and administrators — contested probate — rights of temporary administrator — when discovery proceedings will not cover personal letters.</p> <p>While prior to the issuance of letters the one named in a will as executor may have certain dominion and custody over the property of a decedent, his rights are subordinate to those of the temporary administrator, in the event of a contested probate.</p> <p>Discovery proceedings may not be used for the purpose of seeking evidence to be used in another proceeding.</p> <p>A temporary administrator as an incident of his duty to take into possession the assets of the estate, should, pending a contest of the will, take possession of such documents as bear upon the financial affairs of the deceased, books of account and other similar papers, and in a discovery proceeding an order directing delivery to him of such documents will be granted.</p> <p>Such an order, however, will not be made to cover letters written by the residuary legatee to the deceased; if they constitute material and competent evidence the Code of Civil Procedure provides ample methods for their production for use upon the trial.</p>

<p>Application to set aside and vacate three decrees settling the accounts of executors.</p>

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

<p>Landlord and tenant — method of determining reasonable rent in the city of New York — burden of proof — deductions — Laws of 1920, chap. 944.</p> <p>While the price or value of a building and its rental value stand in a certain necessary relation to each other, the ratio between the rent of land and the price thereof varies widely.</p> <p>In twenty-two actions to recover $125,000 rent for apartments in a building used for dwelling purposes in the city of New York under leases made between April 1, 1920, and September 27, 1920, when chapter 944 of the laws of that year went into effect, and which leases contained no provision making an adjoining playground appurtenant to the demised premises, the defense interposed was that the rent was unjust and unreasonable and that the agreements under which recoveries were sought were oppressive. It appeared on the trial that in 1918 the landlord paid $575,000 for the premises and in addition claimed a liability of $75,000 under an option given to its grantor to purchase back the premises upon payment of that amount. Although the plaintiff claimed that the property is worth $750,000, the cost of reproduction, it further appeared that the gross income of the property amounts to $103,000. The verdict of the jury in favor of defendants was based upon the sum of $688,000, the assessed valuation of the property for the year 1920-1921, but that valuation included vacant adjoining premises assessed for 1921 at $88,000, which, under a former owner, was laid out as a playground and used exclusively by the tenants, but since acquired by plaintiff, has been shut off. Upon denying a motion to set aside the verdicts as contrary to law and the evidence, and upon all the grounds specified in section 999 of the Code of Civil Procedure and section 129 of the Municipal Court Code and for a new trial, held:</p> <p>That the jury had a right to consider that the playground was not a part of the demised premises, thus reducing the value, as assessed, tó $600,000, somewhat over six times its rental value.</p> <p>That the burden was upon plaintiff to reasonably satisfy the jury that it was entitled to allowances for depreciation, repairs, collection, etc., but that the jury were not bound to allow all deductions claimed.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of The Bronx, second district, in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying defendant’s motion for a new trial.

Appeal by the plaintiff from a judgment of the City Court of the city of New York, entered in favor of the defendants dismissing the second cause of action set forth in the complaint and from an order denying the motion of plaintiff to set aside said dismissal and for a new trial, and denying the motion of the plaintiff to amend the first cause of action by increasing the amount of demand.

Appeal by plaintiffs from a' judgment of the Municipal Court of the city of New York, borough of Manhattan, sixth district, in favor' of the defendants, after trial by the court without a jury.

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

Appeal by the tenant from a final order of the Municipal Court of the city of New York, borough of Manhattan, fifth district, in favor of the landlord, 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, sixth district, in favor of plaintiff, after trial by a judge without a jury.

<p>Appeal by plaintiff from an order of the City Court of the city of New York, setting aside a verdict in plaintiff’s favor.</p>

<p>Taxation — jurisdiction of commissioner of taxes, etc., in Hew York city — assessment of property of manufacturing corporation—when objection to form of complaint and procedure deemed waived — owner of property is ‘ ‘ party aggrieved ’ ’ within section 290 of the Tax Law and section 906 of Greater Hew York charter, though tenant bound to pay taxes — certiorari— review of assessment for overvaluation — boilers, generators, etc., in buildings assessable as real estate — Tax Law, §§ 37, 219-j, 219-1— Greater Hew York charter, § 895 — assessment reduced.</p> <p>All that is necessary to the exercise of jurisdiction by the commissioner of taxes and assessments of the city of New York</p> <p>to hear and determine a complaint in relation to an assessment upon property under section 895 of the Greater New York charter is, that within the statutory time limit a complaint in writing stating the grounds of objection to the assessment be presented to the commissioner. (P. 527.)</p> <p>The form of the complaint, the particularity with which the property shall be described or the objections specified, are mere matters of procedure and do not go to the jurisdiction. (Id.)</p> <p>The rule that technical objections to the form or sufficiency of pleading are waived if not taken in advance by proceeding to a hearing upon the merits, applies to proceedings before said tax commissioner to have an assessment revised. (Id.)</p> <p>Where the application for the revision of such an assessment meets all the requirements of section 37 of the Tax Law and of section 895 of the Greater New York charter and is referred to a deputy tax commissioner for reexamination, and the hearing upon the merits is had without objection at any time being made to the form or sufficiency of the application, a reassessment may not be denied on the sole ground that the application was insufficient; the objections are deemed to have been waived. (Pp. 526-528.)</p> <p>The legislature in retaining by section 29'0 of the Tax Law and section 906 of the Greater New York charter the statutory remedies heretofore provided for the revision and correction of assessments by a writ of certiorari, did not intend to exclude from its benefits an owner of property whose tenant by its lease was obligated to and did pay the taxes assessed against the property, and relator, the owner of the property in question here, is clearly a “ party aggrieved ” within section 290 of the Tax Law and section 906 of the Greater New York charter and entitled to maintain certiorari proceedings to review and correct an assessment against its property. (Pp. 529-533.)</p> <p>The relator, a domestic manufacturing and mercantile corporation, is the owner of a plot of land in the city of New York, having ,% frontage of 250 feet on each of two streets and a depth of 200- feet, upon which there are a four-story freezing house, a four-story engine building and a six-story boiler house. In the total assessment of $400,000 upon the real estate in question for each of the years 1918, 1919 and 1920, there was included the alleged value of machinery and equipment in the buildings amounting to $133,000, which relator, on certiorari to review toe assessment as erroneous for overvaluation,</p> <p>claimed was personal property and exempt from taxation under sections 219-j and 219-1 of article 9-A of the Tax Law, and that the true valuation of the real estate was $267,000, which claims were denied by the return to the writ of certiorari. (Pp. 522, 523.) Held, that relator having by a preponderance of proof overcome the presumption that the machinery and equipment could not be removed without material injury to the buildings, a finding that all such machinery and equipment, "with the exception of boilers, generators and main shafting, were so removable and not essential to the support of the buildings, is justified, and the conclusion follows, that all the machinery and equipment included in the machinery assessment, except as above stated, was personal property, not assessable as real estate, and therefore exempt from local taxation during the years in question. (Pp. 538, 539.)</p> <p>A contention of the relator that under section 219-1 of the Tax Law as it stood when it was amended in 1919, only two of the six boilers used for the purpose of operating an ice-plant are taxable, because two is the maximum number which would be required to operate machinery in an ordinary building of the same size as relator’s, is untenable. Within the purview of said statute, which exempts boilers from the exemption therein provided, all six boilers are an integral part of the building and so long as they remain therein are assessable as real estate. (Pp. 539, 540.)</p> <p>The actual market value on the taxable status dates of all the boilers as well as of the generators, main shafting and pulleys, coneededly taxable, amounting in the aggregate to $36,105, as found by the court, must be deducted from the actual market value of the machinery and equipment included in the machinery assessment of $133,000, as of the several taxable status dates, and added to the building assessment. (P. 541.)</p> <p>The relator having fully established all the prerequisites necessary for a correction of the assessments and the court having found that on the several taxable status dates the actual market value of the land was $80,000 and the actual market value of the buildings was $187,000, to which should be added the $36,105, deducted from the actual market value of the machinery and equipment on said dates it is accordingly held, that there was an overvaluation in each of the years in question, to the extent of $96,895, and the several assessments will be reduced to the sum of $303,105. (Pp. 544, 545.) - .</p>

<p>Action to remove cloud on title.</p>

<p>Injunctions — when dependent upon statute in force when relief awarded — statutes, construction of — grade crossings, elimination of — limitation of cost to city — Railroad Law, § 95-a, added by Laws of 1921, chap. 663 — General Municipal Law, $ 51.</p> <p>The rights of the plaintiff in a suit asking for injunctive relief, when dependent upon statute, are to be determined with reference to the statute in force at the time when the relief, if any, is to be awarded.</p> <p>In a proceeding instituted in 1917, by the city of Kingston, N. Y., before the public service commission for the elimination of a grade crossing in said city, an order was made on April 1, 1929, which after directing that the cost of construction of sidewalks, etc., provided for, the cost of relocating or reconstructing sewers and water mains and the costs of and incidental to the acquisition of additional land or resulting from consequential damages, in excess of $125,099, should be borne solely by the city, recited that it, said order, was granted upon the distinct understanding that the cost of construction, acquisition of land, etc., was not to be construed as part of the elimination or be in any way chargeable to the elimination account or paid for out of funds appropriated by the legislature for the abolition of grade crossings, and that the city’s acceptance of the order should be deemed an undertaking on its part to fulfill the obligations imposed upon it by said</p> <p>order. Immediately after the approval by the mayor of a resolution of the common council and before chapter 663 of the Laws of 1921 became a law, plaintiff, a qualified taxpayer of the city, commenced this action under section 51 of the General Municipal Law to enjoin the carrying out of the agreement imposed by the order of the public service commission and to annul said agreement and have it declared illegal in so far as thereby the city was required to pay more than twenty-five per cent of the expense of the elimination. Chapter 663 of the Laws, of 1921 became a law on May 7, 1921, and amended chapter 481 of the Laws of 1910 (Cons. Laws, chap. 49) by the insertion therein of section 95-a of the Railroad Law. Held, that the well settled rule of construction that if there be any inconsistency between the older and later provisions of a statute, the earlier must give way, applied, and that under the statute of 1921, which was in effect when the decision herein was made, the costs of construction of the sidewalks, pavements, sewers and guard-rails and the cost of relocating or reconstructing existing sewer and water mains, and the costs of and incidental to the acquisition of additional land, or resulting from consequential damages, in excess of $125,000 which by the provisions of the order of the public service commission were to be borne solely by the city, are elements of the costs of eliminating said grade crossing to be added to the other expenses of the elimination, together with all contributions made by the steam surface lines including the thirty-one foot strip of land, but not including the expenses of the trolley lines set forth in said order; and that the city’s share of said expense to be apportioned by the public service commission, shall in no event exceed fifty per cent of the entire expenses of such elimination.</p> <p>An injunction granted restraining the defendants from paying more than fifty per cent of the expenses of the elimination of such grade crossing, such items of expense to be made up as indicated in this opinion.</p>

<p>Motion to vacate and set aside judgment of foreclosure and permit a defendant to interpose an answer.</p>

<p>Motion for new trial on the judge’s minutes.</p>

<p>Proceeding under section 2615 of the Code of Civil Procedure for the construction of a will.</p>

<p>Construction of a will upon an accounting.</p>

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

<p>Proceedings upon an accounting.</p>

<p>Proceeding upon the pr-ohate of a will.</p>

<p>Wills — testamentary capacity — verdict of jury that testatrix was of unsound mind and lacked testamentary capacity sustained.</p> <p>A competent testator must have strength and clearness of mind and memory sufficient to know in general, without prompting, the nature and extent of the property of which he is about</p> <p>to dispose, the nature of the act which he is about to perform, and the names and identity of the persons who are the proper objects of his bounty and his relation to them.</p> <p>Testatrix left her surviving as her sole next of kin a son forty-four years old, an incompetent, a victim of epilepsy since he was eleven years of age and who at present is an inmate of a state hospital. When she was about seventy-two years of age and suffering from cancer, Bright’s disease, kidney trouble and fistula she was removed to a hospital in an exhausted condition where she died early the next morning. On the evening of the day before she went to the hospital she made a will by which she bequeathed all of her property, worth about $150,000, to strangers of the blood, to friends and to charities, and within twenty minutes thereafter became bluish. Upon the contested probate of the alleged will brought by the disinherited son, there was introduced in evidence a former will made by decedent about eighteen months before her death while apparently she was in good health, under the terms of which, after certain legacies to much the same persons mentioned in the instrument sought to be probated, the balance of the estate was given to charity. It was conceded, however, that under the former will, decedent died intestate as to about $30,000, which passed to her son because the gift to charity was in violation of section 17 of the Decedent Estate Law. The new alleged will, by language involved and complex, diverts from the son the interest he would take by force of the Statute of Distributions and by a method not calculated to be altogether clear until a final accounting, adds the $30,000 to legacies already given, by definite and fixed amounts, but by a method sure in diverting from the son that which fell to him by reason of his mother’s intestacy. By special verdict the jury found that at the execution of the instrument offered for probate, the testatrix was of unsound mind and lacked testamentary capacity, but that the execution of said instrument was not procured through restraint, fraud or undue influence. Held, that the verdict was not so far against the weight of evidence as to indicate sympathy, passion or prejudice as its procuring cause, and therefore proponent’s motion to set aside the verdict upon the issue of mental capacity will be denied and probate of the instrument refused because of the jury’s finding that testatrix was mentally incapable of executing the instrument.</p> <p>The finding of the jury upon the other issues submitted was consistent with the finding upon the issue of testamentary</p> <p>capacity, and contestant’s motion to set aside the verdict upon said other issues, on the ground that it was against the evidence and the weight of evidence and contrary to law, will also be denied.</p>

<p>Surrogate’s Court—jurisdiction in the accounting of an administrator of testamentary trustee who died without the county in which will was probated.</p> <p>The Surrogate’s Court of the county where a resident’s will was admitted to probate has exclusive jurisdiction of a proceeding for the judicial settlement of the accounts of the administrator of the testamentary trustee who died in another county, where the letters of administration were granted.</p>

<p>Motion to vacate and set aside an order for the examination of a third party.</p>

Appeal by plaintiff from a judgment of the City Court of the city of New York in favor of plaintiff, entered upon a dismissal of the complaint at the close of plaintiff’s evidence.

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

Appeal by tenants from a final order of the Municipal Court of the city of New York, borough of The Bronx, first district, in favor of the landlord, after a trial by a judge without a jury.

<p>Landlord and tenant—purchaser of property from landlord cannot, before taking title, take advantage of a cancellation clause in the lease — summary proceedings.</p> <p>A six months’ notice to a tenant to remove from the premises by one not having title thereto does not operate to cancel the lease or require the tenant to quit the premises.</p> <p>A lease provided that if within five years from May 1, 1906, the tenant did not exercise his privilege under the lease to tear down the building and erect a new one in its place, the landlord should have the, right to cancel the lease upon giving a six months’ written notice effective at the expiration of the term and upon payment of a certain sum of money. Neither of the parties took any action under the lease. Meld, that a six months’ written notice to quit given to the tenant by the land-</p> <p>lord’s grantee of the premises, prior to taking title, in its own name, was insufficient, and a final order in a summary proceeding awarding said grantee possession of the premises will be reversed on the ground of failure to give the notice required by law.</p>

<p>Appeal from a judgment of the City Court of the city of New York, dismissing the complaint at the end of the plaintiffs’ case.</p>

<p>Appeal from a judgment of the city court of the city of New York, dismissing plaintiff’s complaint at the close of plaintiff’s case.</p>

Appeal by the landlord from a final order of the Municipal Court of the city of New York, borough of Manhattan, seventh district, reading as follows: “Motion to dismiss granted unless the landlord agrees to exchange apartment with tenant, latter to pay $110 for the seven room apartment, after trial.”

<p>Action to impress a lien upon real estate for payment of legacies.</p>

<p>Action in ejectment.</p>

<p>Action to reform a policy of accident insurance.</p>

<p>Action to recover damages for failure to perform a contract to sell real property.</p>

<p>Specific performance — if title is good at time of trial specific performance in certain cases will be decreed even if title defective at time of closing — when the giving of dower would upset the scheme of the will and the widow has received income from a trust fund in lieu of dower she is estopped from claiming dower — wills.</p> <p>Where at the trial of an action brought by the purchaser to compel specific performance of a land contract of which time is not of the essence, the title to the property is good, the plaintiff may be required to specifically perform on his part even though the title was defective at the date of the closing of title, provided nothing has taken place in the meantime to his prejudice which would make performance on his part inequitable.</p> <p>A contract to convey certain real estate of a testator having been made by his executors, the intending purchaser, on the day of closing, rejected the title because of a certain judgment against the executors which had been assigned and an alleged dower right of the widow of a former owner of the premises, but the purchaser offered to execute and deliver the purchase money bond and mortgage called for by the contract and tendered a cash payment thereunder, on condition that the executors give a conveyance clear of the objections made to the title. Held, that the reception in evidence, on the trial of an action to compel specific performance brought by the purchaser, of an instrument in writing purporting to release the premises in question from the lien of said judgment, duly recorded and properly indexed, cured the objection to the judgment, and that the defendant executors, who also asked for specific performance,</p> <p>were entitled thereto, it not appearing that such course would tend to make it inequitable to the plaintiff.</p> <p>It appearing that to give dower to the widow of the former owner of the property would necessarily upset the scheme of his will, by which he intended she should have no dower, and would keep from the testamentary trustees, who were vested with the title to the entire estate with full power of sale, a portion thereof, and the widow, having for a number of years elected in lieu of dower to receive the income of trust funds into which the proceeds of a sale of real estate by the said trustees had passed, she would be estopped to set up a claim of dower in the premises in question.</p>

<p>Action to terminate contract and for an injunction and accounting.</p>

<p>Motion to punish for contempt.</p>

<p>Action relating to the disposal of a trust fund.</p>

<p>Injunction (temporary)—continuation of — strikes —organizations engaged in strikes responsible for all lawlessness growing out of strikes which they could have avoided by reasonable discipline imposed upon their members — an injunction will not be vacated upon affidavits where the acts enjoined are illegal and tend to a breach of the public peace, although the alleged facts upon which the injunction is based are substantially denied by the opposing affidavits.</p>

<p>Highways—state liable in damages for elevating grade of highway— Brooks v. State of New York, 189 App. Div. 24, followed.</p>

<p>Court of Claims — jurisdiction — notice of intention must be filed within six months of accrual of claim.</p>

<p> A tax voluntarily paid to the person authorised to receive it under a mistake of law toithout coercion or duress cannot be recovered. </p>

<p>Claim for the destruction of a dam.</p>

Appeal on questions of law from a judgment in favor of the plaintiffs and against the defendant, which judgment was rendered in Justice’s Court in the city of Utica.

<p>Executors and administrators — preferred legacy paid in' part upon giving bond— Code Civ. Pro. §§ 2687, 2688.</p>

<p>Executors and administrators — wills — bequest in lieu of commissions— transfer tax — when amount of commissions not deductible — Tax Law, § 226.</p>

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

<p>Transfer tax — shares of stoch — Boston & Albany railroad — Fitchburg railroad — Tax Law, % 220.</p>

<p>Transfer tax — deed of trust — securities under control of trustee are not “ held by the decedent ”— Tax Law, § 221-b.</p>

<p>Executors and administrators — ancillary administration — disapproval of secret stipulations entered into' between parties interested in the estate — report of referee confirmed.</p>

<p>Proceeding upon the accounting of a trustee.</p>

<p>Proceedings upon the accounting of an executor.</p>

<p>Executors and administrators — temporary administrator should account before making distribution.</p>

<p>Motion to vacate decree granting letters of administration.</p>

<p>Wills — construction of — when the gift is to a class it must be confined to the members of the class living at the date when the division is directed to be made — contingent remainders.</p>

<p>Proceeding upon the accounting of an executor. ■</p>

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

<p>Wills — contested probate — verdict of jury, that deceased was of sound mind and of testamentary capacity but that the will toas procured by undue influence, set aside — burden of proof as to undue influence does not shift but remains on the party who asserts its existence — the inference of undue influence cannot be reasonably drawn from circumstances when they are not inconsistent\ with a contrary inference.</p>

<p>Transfer tax — when previous order fixing tax is not res adjudieata — reversionary interests.</p>

<p>Wills — contested probate — executors and administrators — settlement agreement — infants — power of special guardian to enter into an agreement — Personal Property Law, § 24—Code Civ. Pro. § 2683.</p>

<p>Application to fix transfer tax.</p>

<p>Application for reargument of appeal.</p>

<p>Wills — construction of — harmonizing of intent and language into a valid disposition of the whole estate — when there is doubt whether to impute legality or illegality to a provision in a will it is the duty of the court tp adopt that construction which prevents intestacy and which does not destroy the fundamental scheme of the whole will — although testatrix omitted to mention what she bequeathed and devised to a certain charitable institution it will be held that she intended to give to it the remainder of her estate after certain life estates.</p>

Claim by the United States government against the superintendent of insurance of the state of New York liquidating the business of a surety company.

<p>Proceeding upon the accounting of an executor.</p>