Volume 116 — New York Miscellaneous Reports

Action to exclude the defendant from the office of village trustee for the first district of the village of Lyons, N. Y., and for judgment declaring the relator entitled to said office.

<p>Claim against the state for negligence. Special claim statute.</p>

<p>Wills — when will deemed to be revoked in part — Decedent Estate Law, § 35.</p> <p>Decedent having by a will executed while he was unmarried devised and bequeathed his entire estate to one who subsequently became his wife died survived by her and two infant children, the issue of the marriage. Held, that section 35 of the Decedent Estate Law, as amended by chapter 293 of the Laws of 1919, which was in effect at the time of decedent’s death, applied, and that the will should be deemed revoked as to the surviving issue, but subject to such partial revocation it was valid as to the widow and entitled to be admitted to probate.</p> <p>The executor named being a non-resident letters testamentary will issue upon his giving a bond.</p>

<p>Proceeding to enforce payment of income.</p>

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

<p>Evidence — claim against decedent’s estate — when admissions of decedent insufficient to support claim.</p> <p>Upon the hearing o£ a disputed claim against an estate the testimony of the claimant as to an independent fact which, coupled with the testimony of another witness, would become part of a personal transaction with the deceased, is incompetent and on motion will be stricken out.</p> <p>Where there is no written evidence or memorandum in support of a claim against an estate for a loan of $4,000, the hare admissions of decedent that he owed claimant approximately that amount, though testified to by several witnesses of unquestioned veracity, are not sufficient to support the claim.</p>

<p>Insurance (marine) — interpretation of policy — when action may be brought to recover cost of repairs before repairs are made — marine surveyors.</p> <p>A policy of marine insurance, the language of which is capable of more than one interpretation, will be construed against the insurer.</p> <p>A clause in a policy of marine insurance issued by defendant insuring plaintiff against loss from certain perils to his barge, that “no claim for loss or damage shall go beyond the extent or cost of actual repairs rendered necessary in consequence of any disaster insured against,” is only one of limitation of the amount for which the defendant shall be liable, and does not preclude the bringing of an action to recover defendant’s share of the necessary cost of repairs in advance of their being made.</p> <p>Where it is admitted that a loss within the scope of the perils insured against was subsequently sustained by the barge and competent surveyors appointed pursuant to the terms of the policy report the cost of the necessary repairs to the barge in a certain amount, plaintiff is entitled to judgment for defendant’s share thereof, with interest from the date when the amount of loss was agreed upon by the surveyors.</p>

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

<p>Application to punish respondents for contempt.</p>

<p>A third person cannot be appointed a testamentary guardian jointly with a surviving parent.</p>

<p>Proceedings upon accounting.</p>

<p>Motion "by the defendant to quash the service of a summons.</p>

<p>Demurrer by defendant to plaintiff’s complaint on the ground that it fails to state a cause of action.</p>

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

<p>Action to set aside deed.</p>

<p>Mortgages — foreclosure — acceleration clause in mortgage — notice of an election unnecessary — defective verification of complaint — ineffective lis pendens'—Code Civ. Pro. §§ 1631, 1670.</p> <p>A thirty days’ acceleration clause in a mortgage in regard to payment of installments of principal and interest is valid and no notice of an election to take advantage thereof is necessary unless the contract so provides.</p> <p>While the service of the summons and complaint in an action to foreclose the mortgage is sufficient notice of plaintiff’s election to take advantage of the acceleration clause, he will be held to a strict accountability of his practice if he seeks to hold the mortgagor to a strict compliance with the terms of the bond and mortgage.</p> <p>A complaint which requires amendment as to its verification is not properly verified, and where a lis pendens, owing to improper verification of the complaint in an action to foreclose a mortgage, is ineffective, the court cannot proceed to judgment unless an amendment is allowed.</p> <p>Both the summons and the lis pendens in a foreclosure action brought at the election óf the mortgagee to take advantage of the usual thirtjr days’ acceleration clause, were dated January 4, 1920, which , was Sunday. The complaint was verified the next day, and all of the papers were filed in the County Clerk’s office on January 6, 1921. Held, that if the date of the verification was correct the complaint must be dismissed; if incorrect, the complaint had not been properly verified so as to entitle plaintiff to file a lis pendens, and that to allow the summons, complaint and lis pendens to be amended after the trial and submission of the case would be unfair to defendant.</p> <p>The court is prohibited from rendering judgment in the action unless the requirements of sections 1631 and 1670 of the Code of Civil Procedure are complied with, and the defendant having deposited in court more than sufficient to pay the amount due for principal and interest on a certain date, the amount due on that date should be paid to plaintiff, defendant relieved of his default and judgment directed accordingly.</p>

<p>Injunction — to restrain prosecution of husband’s action for divorce in another state during the pendency of wife’s action for divorce in this state.</p> <p>Where in a wife’s action for divorce the allegations of the complaint that the parties were married in the' city of Hew York in 1895 and lived together there as man and wife up to September 20, 1919, are clear and definite, and the evidentiary proof submitted on a motion by plaintiff for a preliminary injunction to restrain during the pendency of her action the further prosecution of an action for divorce instituted by defendant in the state of Florida in the month of April, 1921, establishes prima facie that defendant, who during all this time has been conducting the business of a stockbroker in the city of Hew York, was not residing in the state of Florida for two years prior to April, 1919, as required by the statutes of said state as a condition precedent to a filing of a bill for divorce, the injunction will be granted, the defendant being within this state and Subject to the jurisdiction of- its courts.</p>

<p>Insurance (marine) — plaintiff entitled to recover damages found upon a survey irrespective of actual cost of repairs.</p> <p>Where a clause in a policy of marine insurance covering plaintiff’s vessel, that “no claims for loss or damage shall go beyond the extent or cost of actual repairs rendered necessary in consequence of any disaster insured against,” taken in collocation with anterior phrases, imports merely a limitation of the sum of loss beyond which liability will not be incurred, and in an action on the policy it is conceded that no repairs were made to plaintiff’s vessel, which was damaged as a result of a marine peril, plaintiff is entitled to judgment in the amount of damages found upon a survey provided for by the policy. .</p>

<p>Equity — assignments of mortgages, induced by misrepresentation, set aside — husband and wife — husband not liable for goods sold to wife upon her credit.</p> <p>Equity will aid to rescind a transaction which has been consummated through misrepresentation of material facts not amounting to fraud.</p> <p>A husband is not liable for goods sold to his wife solely upon her credit although they were living together at the time and he saw her in the possession of the articles purchased.</p> <p>The bills of plaintiff for goods purchased from defendant on a personal charge account during the eight years prior to his marriage amounted to a little over $500. He married, and the woman, who led him to believe that she was the beneficiary of a very large estate then in process of settlement, after living with him for less than ten months deserted him and is now in another state in prison for having defrauded a hotel. During three months after the marriage the defendant permitted her to incur an indebtedness of over $16,000, of which plaintiff had no notice until, in an envelope bearing defendant’s stamp and addressed to his wife, he found the itemized bills. Held, that in an action to set aside certain assignments of mortgages to secure the wife’s indebtedness, the execution of which assignments was induced by the misrepresentation of the defendant’s employees and lawyers that plaintiff was responsible for all debts contracted by his wife while she was living with him, the plaintiff was entitled to judgment although no fraud on defendant’s part was proved and the theory of constructive fraud was not available to plaintiff.</p>

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

<p>Replevin — conditional sales — seizure of automobile for illegal transportation of liquors — vendor entitled to possession of car.</p> <p>An automobile delivered pursuant to a contract of conditional sale, title to remain in the vendor until payment of the purchase price, having been seized by the Federal authorities upon the arrest of the vendee for transporting liquors in said car in violation of the Volstead Act, was released and returned to him on the acceptance of his bond for the return of the car on the day of trial. Held, that the vendor was entitled to maintain replevin for the car, and it appearing by an adjudication of a Federal court in reference to the car that the United States government has no claim thereto, a judgment awarding possession of the car to plaintiff will be affirmed.</p>

<p>Action to compel reinstatement as a member of the Catholic Mutual Benefit Association and that certificate of Catholic Mutual Benefit Association be declared certificate of American Insurance Union.</p>

<p>Negligence — rules of the roadi—intersecting streets — one-approaching from right has not an absolute right of way regardless of the distance of approaching vehicle from street crossing— evidence — question for jury — Highway Law, § 287.</p> <p>Section 287 of the Highway Law should not be construed as giving those approaching from the right the absolute right of way under any and all conditions regardless of the distance an approaching vehicle may be from a street crossing, but should be interpreted to mean that when two vehicles approach a street crossing so that if both continued on their way a collision would be likely, the vehicle on the left must give way to the one on the right.</p> <p>If the relative positions of the two vehicles are such that, in' the exercise of reasonable care and prudence, the driver on the left would be justified in believing that he could safely pass over ahead of the other without danger of collision, then he may proceed to do so.</p> <p>Plaintiff at about eleven o’clock at night was driving a horse and baker’s wagon along a city street sixty-five feet wide, at about ten miles an hour. Upon looking to the right when he reached the corner he saw defendant coming down the intersecting street and about two hundred and fifty feet away. Judging that defendant was going at about twenty-five miles an hour, plaintiff, thinking that he could safely cross, proceeded and reached the other side of the street on which defendant was when his hind wheel was struck by defendant’s automobile. Plaintiff’s horse was beyond the other side of said street when the collision took place, and from the point where plaintiff first saw defendant’s machine to the point where he was hit, was about fifty-eight feet. Held, that the evidence tended to show negligence on the part of the defendant and that a judgment entered upon granting defendant’s motion for a nonsuit will be reversed and a new trial granted on the ground that upon the evidence the questions both as to defendant’s negligence and as to plaintiff’s contributory negligence were for the jury.</p> <p>It was a fair inference that had defendant been looking ahead he would have seen plaintiff’s horse and wagon and by slightly turning his machine would have avoided the accident.</p> <p>On appeal from a nonsuit the appellant is entitled to the most favorable view which' the testimony will permit.</p>

<p>Appeal by landlord from a final order in favor of the tenant dismissing the proceeding on motion of the tenant.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, fifth district, dismissing plaintiffs’ complaint upon the merits.</p>

<p>Conversion — sheriff or marshal executing warrant of attachment liable in conversion for seizing property of a person not designated. in the warrant and has no lien for his fees.</p> <p>A sheriff or marshal executing a warrant of attachment against the property of a designated person has no right to seize the property of any other person, and if he does, he is liable in conversion and has no lien upon the property for his fees and expenses under the warrant of attachment, as against the rightful owner of the property.</p> <p>Where upon the trial of an action in conversion it was conceded that the property in question belonged to plaintiff and that defendant had refused to deliver it to plaintiff on demand unless his fees and expenses as marshal were paid, a judgment dismissing the complaint will be reversed and judgment directed in favor of the plaintiff for the conceded value of the property.</p>

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, second district, dismissing plaintiffs ’ complaint upon the merits,. after a trial before the court without a jury.</p>

<p>Landlord and tenant — premises used both for business and dwelling purposes — Laws of 1920, chaps. 942-953 apply only to premises occupied for dwelling purposes — landlord entitled to recover possession of premises other than parts occupied for dwelling purposes.</p> <p>The tenancy created by recent legislation (Laws of 1920, chaps. 942-953) is by the express terms of said statutes applicable only to premises occupied for dwelling purposes.</p> <p>A lease of a two-story building in New York city provided that the premises were to be occupied by the tenant “ as a retail cigar, confectionery, stationery, and newspaper store and dwelling and not otherwise.” The tenant used the room behind the store, which was on the ground floor, and the rooms on the second floor for dwelling purposes for himself and family. The lease was not renewed and since March 1, 1921, when it expired, the tenant has not remained in possession under any new agreement with the landlord. Held, that the landlord was entitled to the possession of the premises with the exception of that portion which the tenant occupies for dwelling purposes.</p>

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

<p>Action on contract for the sale of real property.</p>

Action by the brother and sole heir at law of William H. Cooley, deceased, for the admeasurement of the dower of the defendant, widow of the decedent, in certain real estate.

<p>Motion to set aside service of a summons.</p>

<p>Taxes — statutes granting exemptions strictly construed—section 4-b, Tax Law, an enabling act'—taxable status date in thei city of New York fixed by section 892 of the Greater New York Charter — writ of mandamus denied.</p> <p>Under the rule that statutes granting exemptions from taxation are to be strictly construed, an exemption may be granted only so far as it is expressly authorized.</p> <p>Section 4-b of the Tax Law (added by chap. 949 of the Laws of 1920) relating to exemption of new buildings from local taxation, is merely an enabling act authorizing a municipality to adopt a scheme of exemption for buildings completed after April 1, 1920, and those begun before April 1, 1922.</p> <p>Upon an application for a writ of mandamus directing the board of taxes and assessments to strike from the tax roll of the city of New York the taxes imposed and charged against two buildings ownéd by relator containing over one hundred dwelling apartments which were completed July 1, 1920, it was conceded that said buildings are entitled to some exemption under the provisions of a city ordinance which employs the date April 1, 1920, in the same connection in which it is used in section 4-b of the Tax Law. Said ordinance became effective February 25, 1921, and was authorized by said section 4-b of the Tax Law, which became a law September 27, 1920, together with other so-called “housing laws.” Relator’s application for an exemption for the year 1921 made On April 23d of that year, at which time, although no part of the tax had become a lien upon the property, the assessment roll for the 1921 tax had been delivered to the board of aldermen, was denied under section 892 of the Greater New York Charter on the ground that no exemption could be granted under the ordinance “ until the next taxable status date which will be October 1st, 1921, for the year 1922.” Held, that the application for the mandamus will be denied for the reason that said ordinance was not intended to apply to the taxes for the year‘1921.</p>

<p>Lands under water — colonial grants — when lands below high water mark at date of grant are not included in the grant — Symes patent, Staten Island, New York.</p> <p>The petition upon which the grant was made by Queen Anne to Lancaster Symes in 1708 of land on Staten Island referred only to “ Some Small Vacancies in the Crowne.” The report of council, the warrant for the grant and the grant itself mentioned, as the subject thereof, only the pieces and parcels of vacant and unappropriated land on Staten Island. Held, that it was not the intention to include in said grant any lands below high water mark as the same existed in 1708, and in a proceeding instituted by the city of New York to determine the title to lands under water, an objection to the admission in evidence of the Symes grant and to an Indian deed and the statutes offered in connection therewith, will be sustained.</p>

Motion on behalf of the defendant Chapin Brown, to vacate an injunction, restraining him from taking further proceedings in the Surrogate’s Court of Steuben county, to compel the plaintiff executors to account to and deliver to him, in his representative capacity, certain personal property.

<p>Action to have a certain deed of conveyance adjudged fraudulent and void.</p>

<p>Habeas corpus—mere possession of intoxicating liquor does not constitute a crime — when liquor cannot be seized without a search warrant — constitutional rights — seizure of liquor without search warrant unauthorized — Volstead Act — Laws . of 1921, chap. 155 — Code Crim. Pro. § 802-b, subds. 2, 6.</p> <p>The mere possession of intoxicating liquor in and of itself does not constitute a crime, and it may be seized'only when it is held in defiance of the Volstead Act or of chapter 155 of the Laws of 1921.</p> <p>While under subdivision 6 of section 802-b of the Code of Criminal Procedure such a seizure can only be made without a warrant where the unlawful possession of the alleged liquor is “ outside of a person’s private dwelling” subdivision 2 of the same section distinctly specifies the circumstances under which a search warrant may be obtained.</p> <p>A charge that on May 8, 1921, relator had in his possession intoxicating liquor is not sustained by the evidence of police officers who entered relator’s home without a search warrant, that they found and seized bottles therein which in their opinion contained whiskey.</p> <p>Both the entry into relator’s premises and the seizure of the liquor therein, without a warrant, and in a manner contrary to the direction contained in subdivision 2 of section 802-b of the Code of Criminal Procedure, were in violation of relator’s constitutional rights, and upon his conviction on such testimony, of having liquor in his possession in violation of the Volstead Act and chapter 155 of the Laws of 1921, he will be discharged on habeas corpus.</p>

<p>Summary proceedings by plaintiff to remove defendant from her premises.</p>

<p>Transfer tax—appeal — permission to submit further evidence owing to war conditions.</p> <p>Where the notice of appeal from an order assessing a transfer tax is broad enough to raise the question whether certain legacies were charges upon the real estate of decedent, who died in Germany, the appellant may be permitted to submit further evidence upon that question, which because of war conditions it was impossible to obtain from residents of Germany, when the appeal was taken.</p>

<p>Trust — testamentary trustee — accounting — when attorneys’ fees will not be awarded against a beneficiary.</p> <p>An application for an accounting instituted by the executrix of the beneficiary of a testamentary trust of a one-fourth interest in the estate of testatrix subject to the life estate of her mother in certain real property was resisted by the testamentary trustee, the husband of the testatrix, on the ground that there was no trust because the same had been terminated by the consent of the beneficiary of the trust. On the hearing it was established that a sister of the testatrix, immediately upon purchasing the entire property from the testamentary trustee for $60,000, had mortgaged it for $40,000 and turned over $30,000 to the testamentary trustee, out of which he paid a $10,000 mortgage and another for $5,000. The will charged the testamentary trustee with a payment of the larger mortgage which had been placed upon the property apparently for his benefit. The purchaser from the trustee kept the balance of the avails of the $40,000 mortgage and the interest of the beneficiary of the trust was left in the property subject to that mortgage. The surrogate held that the transfer of the trust estate, amounting to $13,185.75, was illegal and by a decree charged the testamentary trustee with the income thereof at the rate of four per cent for the time the beneficiary lived after the death of his mother, the life tenant of the whole property. No costs were awarded to the trustee, and the decisions of the Appellate Division and of the Court of Appeals, affirming the decree, were without costs to either party. The beneficiary having died the accounting proceeding was continued by his executrix and the testamentary trustee having also died the proceeding was continued in the Court of Appeals by his executor. Upon petition of attorneys to fix the amount of their compensation for services and disbursements to the testamentary trustee, held, that if the claim was to be allowed at all the -expenses of the contest of the illegal transfer of the principal of the trust should be charged against the principal and not against the income; that claimants should prosecute their claim against the purchaser of the trust estate, who as claimed agreed to execute the trust and be responsible therefor.</p> <p>That if the trustee, though acting in good faith but under a misapprehension as to the law, had been successful in his contention there would have been no trust estate, and what was done by him and by his attorneys for him was in the interest of the trust estate and there was no foundation for the claim for payment out of the income of the trust fund.</p> <p>The fact that costs were not awarded against the trustee personally was no reason why his costs and disbursements should be awarded against the beneficiary, as sought herein.</p> <p>Though the trustee, as well as the beneficiary, appealed from the decree of the surrogate, there was nothing to prevent the trustee from complying therewith and accounting to the beneficiary for the sum required, and it not appearing that even a tender thereof was made, it was too late in the present proceeding to raise that question as a reason why the beneficiary should be asked to pay the costs of the trustee in resisting the claim herein.</p> <p>Decree directed to be entered disallowing the claim for compensation and settling the account of the executor of the testamentary trustee, charging him with $1,875.30 income on the trust estate, with interest, as directed by the decree of the surrogate, subject to the payment of the trustee’s commissions, but without costs to either party.</p>

<p>Proceedings upon the accounting of temporary administrators.</p>

<p>Specific performance — land contract — "when specific performance will not be refused — housing legislation — Laws of. 1920, chaps. 942-953.</p> <p>Specific performance will not be refused for a cause which would not be an excuse for non-performance in an action at law.</p> <p>Specific performance of a land contract will not be refused because of difficulty or even hardship arising from changed conditions or events subsequently occurring which should have been in contemplation of the parties as possible contingencies.</p> <p>"A contract to convey an apartment house in the city of New York, free and clear of all incumbrances except as stated in the contract, was made “ subject to the rights of present tenants by lease or otherwise, no lease extending beyond October 1, 1920.” At the request of the vendee the closing of title was, on July 15, 1920, adjourned for three months by a stipulation which required the vendor, unless the apartments should be vacated, to enter into leases with the present or new tenants for terms not exceeding one year from October 1, 1920, at rentals in his discretion but which should total not less than a certain sum a year. The contract also contained the following: “No present existing objections to title shall be considered canse for failure to take title.” Held, that upon the vendee’s refusal to take title because of the housing legislation (Laws of 1920, chaps. 942-953, in effect September 27, 1920) the vendor was entitled to maintain an action to compel specific performance of the contract.</p>

<p>Intoxicating liquors—when return of peace officer is complaint under section 802-b(6) of the Code of Criminal Procedure — answer — demurrer.</p> <p>The return of a peace officer who pursuant to subdivision 6 of section 802-b of the Code of Criminal Procedure (added by chap. 156 of the Laws of 1921) has seized intoxicating liquor without a search warrant, is a complaint for the purposes of said section, subdivision 2 of which provides that on the return day of a search warrant issued on a complaint and containing a notice to all persons interested to appear and show cause why a forfeiture of the liquor seized by virtue of the warrant should not be ordered, any one in interest may interpose an answer and that the issues thus framed shall be deemed an action pending in the court of the judge or justice who issued the warrant, and tried in said court as other issues of fact are tried therein. Held, that until an answer was served there was no action, but the interposition of an answer excludes the- idea of demurring, and a motion for judgment on the pleadings will be denied.</p>

<p>Mortgages — foreclosure—subordination of mechanics’ liens good consideration for bond and mortgage — when mortgage not deemed to be usurious.</p> <p>After plaintiff had refused to accept an assignment of a usurious mortgage given to procure a loan from plaintiff to the brother of the mortgagee who was but a dummy in the transaction, the mortgage, as a separate and distinct transaction, was assigned to one who was threatening to foreclose a mechanic’s lien on the property of said brother. Held, that the consideration for the bond and mortgage was the subordination of the mechanic’s lien, and that in the hands of the assignee the mortgage was not usurious, and having a valid inception in the hands of the assignee it was not usurious for plaintiff to buy it, and, in an action to foreclose it, the defense of usury cannot avail.</p>

<p>Action brought in behalf of certain taxpayers against the defendant, a former town superintendent of highways.</p>

<p>Vendor and purchaser — unmarketable title to real estate — encroachment of five inches beyond street line.</p> <p>Where encroachments of a building extending about five inches beyond the street line are common in the neighborhood, an intending purchaser under a contract which provides for a deed subject to covenants and restrictions running with the land, will not be compelled to complete his purchase although no action has as yet been taken by public authorities toward requiring the encroachments to be removed, the cost of which might exceed $3,000.</p> <p>In an action by the intending vendee to impress a lien upon the property for the amount paid by him on the contract and for title examination the plaintiff is entitled to judgment.</p>

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

<p>Verdict — must fix value of chattel not replevied — Code Civ. Pro. 6 1726.</p> <p>A verdict which awards to the plaintiff a chattel not replevied must also, under section 1726 of the Code of Civil Procedure, fix the value of the chattel at the time of the trial.</p> <p>Where on the trial of an action to recover possession of a heifer which had not been replevied, no evidence of its value was given or offered, a verdict in favor of plaintiff “ as the rightful owner of the blue heifer in question” does not comply with section 1726 of the Code of Civil Procedure and the judgment entered on such a verdict will be reversed and a new trial granted.</p>

<p>Landlord and tenant — action for rent under leases made prior to September 27, 1920 — ‘ ‘ reasonable rent ’ ’— how determined.</p> <p>Any investor in real estate should at least get as much income therefrom as the investor in mortgages on realty and franchises, which at the present time are producing income at eight per cent to eight and one-half per cent</p> <p>In an action to recover rent of premises in the city of New York under written leases executed prior to September 27,1920, when the housing statutes went into effect, the plaintiffs, while claiming that the rent reserved in the leases was the reasonable rental value of the premises, stipulated on the trial that they would accept as the proper amount of net income seven per cent on the fair market value of the premises. 'Held, that the question of the reasonableness of the rent should be determined as follows:</p> <p>1. Determine the present fair market value of the premises by opinion evidence as to both fee and rental value, or other competent evidence.</p> <p>2. Determine the gross rentals demanded by the landlord.</p> <p>3. Determine the allowable operating expenses for the past year, which ordinarily consist of payments for taxes, water rates, insurance, janitor services and necessary legal expenses incidental to maintaining the landlord’s right to possession and for collecting rents; also payments for necessary supplies incident to the use of the premises, such as coal, gas and electricity, and also necessary current repairs for the year. Allowance should also be made for loss of rent, and for annual depreciation — two per cent per year—upon the fair market value of the buildings, if established.</p> <p>4. Deduct from the gross rentals the operating expenses to ascertain the net rental, and if this does not exceed ten per cent of the present value of the property, the rent demanded is not unreasonable.</p> <p>The landlord getting a return as rent on his total investment, which includes that part represented by mortgages on the property which must be paid, will not be allowed to charge, as an operating expense, the interest paid on the mortgages or any expense in negotiating the same.</p> <p>Judgment in favor of plaintiffs upon a finding that the net rental was much less than ten per cent and, therefore, reasonable^ affirmed.</p>

Appeal by the plaintiff from a judgment dismissing his complaint upon the merits, with costs, after a trial in the Municipal Court of the city, of New York, third district, borough of Brooklyn, before the court without a jury. The action was to recover a balance of broker’s commissions upon the sale of real estate.

<p>Partition — referee’s report must be under oath — the proceeds of sale of one piece of property cannot be used to pay taxes on another parcel — where parcels can be sold only for a nominal sum the interlocutory judgment will be amended directing their sale subject to unpaid taxes and assessments or eliminating them from the complaint — Code Civ. Pro. § 1576.</p> <p>A referee’s report of sale in a partition action may not be confirmed unless it is under oath as required by section 1576 of the Code of Civil Procedure.</p> <p>Where under the interlocutory judgment in a partition action and the terms of sale, the purchaser will be entitled to the properties — six pieces — free of all taxes, and it is proposed to pay from the proceeds of the sale of four parcels the unpaid taxes against the other two parcels, each of which was sold for a nominal sum, a motion to confirm the referee’s report of sale will be denied with leave to renew, as to grant the motion would be to make a present to the purchasers at the expense of infants and other parties in interest.</p> <p>The interlocutory judgment containing no other direction than that all taxes which are liens upon the properties sold must be paid out of the proceeds of sale, a motion by the guardian ad litem of infant defendants to amend the judgment so that the two parcels in question may be resold subject to unpaid taxes and assessments, or that they be eliminated from the complaint, is proper.</p>

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

<p>Landlord and tenant — landlord cannot be enjoined from renting apartments to colored people — an injunction will not lie to enforce the provisions of the Health Law and Tenement House Law in the absence of proof that these departments have failed to perform their duty.</p> <p>A landlord may not be enjoined from renting apartments to -tenants of color even assuming that thereby he seeks to force the white tenants to vacate.</p> <p>Where a complaint alleges that a landlord is renting furnished rooms in the city of New York to lodgers and, in contravention of the Health Law and the Tenement House Law, is allowing them to occupy the same in such large numbers as to overcrowd the apartment, in consequence of which the health and safety of the plaintiff are threatened, and the manner of enforcing the statute is therein prescribed, an injunction will not lie, in the absence of proof that the officials of the various city departments have neglected or failed to perform their duty and enforce the law.</p>

Motion to confirm the report of a referee in a proceeding to distribute the surplus arising from a sale in a mortgage foreclosure in the action above entitled.

<p>Injunctions — when injunction will he granted restraining the stationing of a police officer in a restaurant.</p> <p>Where for a month after the police department of the city of New York, acting in the best of good faith, had stationed a uniformed officer in plaintiff’s restaurant, no arrests were made and no connection shown between plaintiff and the acts of one who ha.d been arrested more than once for operating as a common gambler in and about the restaurant, an injunction will be granted against the continuance of the officer’s presence in the restaurant.</p>

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

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

<p>Contracts — cancellation — threat to . pursue legal remedy not duress — insufficiency of complaint — motion for judgment on pleadings granted. •</p> <p>A contract may not be cancelled for duress because of a threat to one of the parties which it is not claimed could or would have injured him.</p> <p>A threat to pursue a legal remedy cannot be made the basis of an action for the rescission and cancellation of a contract.</p> <p>One who voluntarily places his property in the possession of another may not recover it back in the absence of some claim that the other person holds it wrongfully.</p> <p>Pursuant to an agreement between them, defendant paid to plaintiff a certain sum of money and placed a further sum in escrow to await an examination of their accounts. Thereafter the defendant, falsely representing to plaintiff’s attorneys that he was indebted to various of his creditors, stated that unless the amount in escrow was paid to him he would at once become a voluntary bankrupt and in the bankruptcy proceedings would swear that plaintiff knew that he was insolvent when the agreement was made, and that at plaintiff’s suggestion and request he concealed himself from his creditors to avoid service of process, and that by reason thereof the payment to plaintiff would be held to be an unlawful preference under the Bankruptcy Act. Plaintiff, acting on the belief that defendant would carry out said threat and under the influence of the fear, coercion and duress created thereby, executed and delivered to the holders of the money held in escrow an order to pay the same to defendant. A complaint alleging the above 'facts demanded judgment restraining a transfer of said order or any of the money called for by it. Held, that though by a motion for judgment on the pleadings defendant admitted that the threat was made and that while under the influence of the fear, coercion and duress created hereby plaintiff executed the order in question, such admission fell short of a concession that the false swearing could bring injury to plaintiff or that the plaint;ff believed it could, and the complaint containing no allegation that plaintiff was deceived by defendant in the giving of the order or that the plaintiff believed he could be injured by the false swearing, the motion will be granted, with leave to amend the complaint.</p>

<p>Stockholder’s action to recover damages for negligence of defendant directors.</p>

<p>Attorney and client — jurisdiction of surrogate to determine value of professional services — Judiciary Law, § 475.</p> <p>Where an attorney has no lien under section 475 of the Judiciary Law the surrogate has jurisdiction upon the petition of the attorney to determine the value of professional services rendered by him to the representative of an estate, as such, and to direct payment therefor.</p>

<p>Claim for value of land and value of an alleged easement appropriated by the state.</p>

<p>Mandamus — when may issue against a public officer —peremptory mandamus issued against mayor to execute release.</p> <p>A writ of mandamus may issue against a public officer to compel the doing of a ministerial act.</p> <p>Where a contract for public work or services has been performed by the opposite party and all that remains is the mere execution by a public official of the consideration for such performance and delivery thereof, mandamus is the proper remedy to compel such action.</p> <p>The acceptance of a resolution duly adopted by the commissioners of the sinking fund whereby the city of New York agreed to release any claims it had in certain property belonging to the relator, in consideration of the payment by him of certain moneys and of all unpaid 'taxes and assessments, by payment of the moneys called for, constitutes a contract.</p> <p>Where upon the payment by relator of the moneys, taxes and assessments, the required release was drawn and approved by the corporation counsel and the comptroller, a writ of peremptory mandamus will issue to compel the mayor, whose duty it was both under the statute and the resolution to execute the release, to execute the same.</p>

<p>Motion for leave to intervene.</p>

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

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

<p>Action for an injunction restraining defendant from .making certain charges for natural gas for fuel.</p>

<p>Summary proceedings.</p>

<p>Proceedings upon the accounting of an executor relating to the validity of an assignment of a legacy.</p>

<p>Nuisance — when owner of premises bound to abate nuisance although not responsible for its cause — demurrer to application for writ to compel the board of health to abate the nuisance sustained — Public Health Law, § 31.</p> <p>The owner of premises having notice or knowledge of the existence of a nuisance thereon is in duty bound to remove it although it was caused by a previous occupant.</p> <p>Where a quantity of potatoes which a farm tenant was permitted by the owner of the premises to store in the cellar of the dwelling-house became rotten and decayed because one to whom the tenant orally agreed to sell them refused to take or remove them, it is the duty of the owner of the premises under section 31 of the Public Health Law to abate the nuisance.</p> <p>The owner of the premises having an ample remedy at law to determine who was responsible to him for leaving the potatoes to rot in the cellar, a demurrer to his application for a writ of mandamus to compel the board of health to abate the nuisance or to show cause, will be sustained.</p> <p>It not appearing whether the board of health had inspected the premises or had determined whether a nuisance existed thereon, the fact that relator asked for more than he would be entitled to in any case, was a sufficient reason for a dismissal of the proceeding, as matter of discretion, even though in all other respects the relator was right.</p>

<p>Trusts — a trust deed speaks as of its date — substituted trustee — accounting — separate trusts administered in solido — a trust deed affecting real property in the state of New York must be determined by the laws of New York — when law of domicile of settlor should control rather than the laws of the situs of the property in determining who are the heirs-at-law of a beneficiary within the meaning of the trust .deed.</p> <p>A trust deed speaks as of its date and must be interpreted solely in the light of conditions then existing.</p> <p>A deed of trust of property having an actual situs in the state of New York and consisting in part of real estate, directed that, after the payment of expenses, one-half of the income should be paid to the settlor of the trust, one-quarter to each of her two nieces, the daughters of the trustee, during their respective lives, and, at the death of each beneficiary, the trustee was directed to transfer a like proportion of the trust estate to her heirs-at-law. At the time of the execution of the deed all of the parties then in interest resided in Massachusetts. Upon the death of the settlor, who left no husband and no children, but heirs, among whom were the two remaining life beneficiaries under the trust deed, all the trust property, except a certain piece of real estate, was sold by the consent of all parties in interest, and one-half of the trust estate was thereupon separated and distributed. Thereafter one of the two surviving beneficiaries, who had never married, died a resident of Massachusetts, leaving as her sole heir-at-law her sister to whom one-half of the then trust property was paid, and the remaining half the substituted trustee held for her benefit until she died a resident of New York, leaving no husband and no issue but heirs on the side of both of her parents. In an action by the substituted trustee for the settlement of his accounts and for distribution of the trust estate, held:</p> <p>Although there was no direction to separate the corpus of the trust estate into three parts the deed created three separate trusts, because upon the death of each life beneficiary her proportionate share of the corpus was freed from the trust and became alienable.</p> <p>The interests of the beneficiaries being separate, although the trust property was to be administered in solido, the trust was valid under the statute law of New York and under the common law of Massachusetts, which in the absence of proof to the contrary is presumed to be the same as the common law of New York.</p> <p>The effect of the trust deed upon real property situated in the state of New York must be determined by its laws, and therefore upon the death of the last beneficiary of the trust' the title in fee to the unsold real estate vested at once in her heirs-at-law without any conveyance or other act upon the part of the trustee, and the court is without power to direct the sale thereof, either by the trustee or otherwise, except by consent of all parties.</p> <p>The persons entitled to take do not take as her heirs or by inheritance from her but as remaindermen under the trust deed, and as purchasers from the grantor therein named, the words “heirs at law” being construed merely as designating the class of persons entitled to take.</p> <p>The law of Massachusetts, that in the absence of circumstances evidencing a different intent, the law of the domicile of a settlor should control rather than the law of the situs of the property or the law of the domicile of the person whose heirs are to take at the time of her death, was applicable in determining who are the heirs-at-law of the last life beneficiary within the meaning of the trust deed, and a contention that only her heirs ex parte paterna are entitled to take, is untenable for the reason that the estate never belonged to her.</p>

<p>Principal and agent — contract under seal — undisclosed principal.</p> <p>A contract under seal for a lease made with one known to be an agent may be enforced by his undisclosed principal.</p>

<p>Motion to cancel lis pendens.</p>

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

<p>Accounting — compulsory — Surrogate’s Court — when creditor may compel an executrix to account.</p> <p>Decedent, who had been engaged in a wholesale coal business, the gross sales of which exceeded $4,000,000 per year, gave his personal attention to the purchase and sale of the coal. The petitioner, for a compensation of an annual salary of $3,000, and fifteen per cent of the profits of the business, rendered services of a very confidential nature, the financial side, accounting, collections and credits being left to him, the decedent signing cheeks in blank and delivering them to petitioner for use in the business. This agreement, which was for a year, though oral, was clearly established by the declarations of decedent to third persons, and particularly from the entries made in the books of account in the usual course of business, which entries clearly and convincingly controverted a contention that certain withdrawals of funds by petitioner constituted loans or advances to him by decedent. The course of conduct between them showed that such payments were made as part of the agreement for compensation. Held, that by the continuance of the rendition of such services until the death of decedent on October 4,1918, the original agreement must be presumed to have continued during that year, and that petitioner’s status as a creditor of the estate was established and that he was entitled to compel the executrix to account.</p>

<p>Transfer tax — domicile — when testator held to be a non-resident.</p> <p>Though domicile may exist without actual residence it can never exist without intention, and so long as intention to return to a domicile exists long continued absence therefrom is no indication of abandonment.</p> <p>Where in a transfer tax proceeding it appears that decedent, who from 1879 until his death in 1919 maintained a home in Pittsburgh, Penn., had, in numberless written declarations, in conversations with friends, and statements under oath, expressed his intention to remain to the day of his death a resident of the state of Pennsylvania, and supporting facts amply sustain the burden of proof cast upon the executors to establish that he was a non-resident of the state of New York and completely destroy the statutory presumption arising from the fact that during the last two years of his life he dwelt in the city of New York in excess of the period laid down by section 243 of the Tax Law, and proof of his intention to reside permanently in New York is utterly lacking, it must be held that he was a resident of Pittsburgh, Penn., at the time of his death.</p>

<p>Proceedings upon the accounting of a trustee relating to objections involving the payment of income.</p>

<p>Wills — conditional devise and bequest — charge upon real estate ■—who entitled to maintain an action to foreclose a lien on real property.</p> <p>A devise and bequest of testator’s residuary estate to his son was upon the condition precedent that if his sister C. remained unmarried he should provide her during life with a home, food, necessary clothing, medical care and attendance suitable to her station in life, and at her death pay the expenses of her last illness and of her funeral, and the testator charged certain of his real estate with the payment of such expenses and declared them to be a lien thereon. The residuary devisee conveyed said real estate subject to such charge, and one of the grantees now in possession of the premises was appointed the administratrix of C., who left no estate. Held, that the person primarily entitled to maintain an action to foreclose a lien on the property for medical and surgical services rendered to C. during her last illness was her administratrix, but her interest as such, being adverse to her interest as owner of the property, it was unnecessary that the plaintiff should demand that the administratrix bring the action; it was sufficient to make "her a party defendant, and the proofs being sufficient, she is entitled to judgment.</p>

<p>Ships and shipping — collision — property rights of owner as bailor of a barge distinct from special property rights of bailee — when bailor has a right of action against third person for injuries to vessel — property rights of bailor not affected by special clause in contract of towage between bailee and third person.</p> <p>The owner of a barge, as bailor, has a general property right therein in the nature of a reversionary interest which is separate and distinct from the special property right of the bailee.</p> <p>The bailor has a right of action against a third person for a negligent or tortious wrong which permanently injures or impairs the owner’s reversionary interest and it is not necessary that privity of contract exists between the bailor and the alleged • wrongdoer.</p> <p>The respective property rights of the bailor and bailee in a barge, being separate and distinct, a clause in a contract of towage made between the bailee and one through whose alleged negligence the barge was damaged in a collision, that “ all towing is done at the risk of the tow,” must be limited in its application to an exemption from liability for damages to the property rights of the bailee only.</p>

<p>Application by the city of New York for the condemnation of lands for street purposes.</p>

<p>Application by executor for approval by the court of a compromise agreement in contested probate.</p>

<p>Ejectment—action on contract cannot be maintained against a Seneca Indian — no title,acquired in land of an Indian purchased at a sheriff’s sale under execution — Indian Law, § 2.</p> <p>Under section 2 of the Indian Law an action on contract is not maintainable against an Indian of the Seneca nation and a judgment rendered against him in such an action is void.</p> <p>Where the real estate of an Indian of the Seneca nation has been sold at a sheriff’s sale under an execution issued upon a judgment to recover against him for goods sold", he is entitled to judgment in an action in ejectment against the grantee of the purchaser at the execution sale.</p>

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

<p>Wills—construction of — devise to wife during widowhood — absolute right of disposal — determination of title — Real Property Law, §§ 151,154.</p> <p>Where a devise to testator’s wife “ as long as she remains my widow” is followed by apt words giving her an absolute right of disposal, the question whether she took an absolute fee can only be determined at her death or by her remarriage.</p> <p>Sections 151 and 154 of the Real Property Law do not apply.</p>

<p>Executors and administrators — accounting — where an executrix has knowledge of a claim against decedent’s estate she is not relieved from liability therefor because the claim was not presented within a year — Code Civ. Pro. §§ 2678, 2682, 2688.</p> <p>Section 2678 of the Code of Civil Procedure must be read in connection with sections 2682 and 2688 of said Code.</p> <p>More than a year after the grant of letters testamentary, a judgment for money loaned to decedent was rendered in an action brought against his executrix. By a compulsory accounting on petition of the judgment creditor it appeared that subject to commissions and expenses the executrix had on hand for distribution a balance of $1,540, but in an amended account which showed a deficit of $747.78 she charged herself with $3,429.50 and among other items credited herself with certain payments made to ■ herself for expenses incurred during the last illness of her decedent and for alleged repairs to a coat and also with various payments to herself as sole legatee under the will, amounting to $2,735.72. The executrix even before the death of decedent was aware that petitioner, an aunt of decedent, had or alleged that she had some claim against the estate, and after she had been served with the summons and complaint in the action in which judgment was rendered against her, the executrix made a payment to her husband of $1,300. Held, upon allowing petitioner’s claim, that while the executrix may not have known the exact amount of petitioner’s claim she did know that she claimed to be a creditor of the estate, and having such knowledge she was not relieved from liability therefor because the claim was not presented within the year, and a motion to dismiss the proceeding on that ground will be denied.</p> <p>The amended account will be surcharged with the amount paid by the executrix to herself as sole legatee, and the objections sustained to that extent, but the executrix having proved her claim against the estate for payments made to herself as a creditor of decedent, the same are allowed with direction for their payment in full or pro rata, and costs allowed to the petitioner payable out of the estate.</p>

Motion by plaintiff to amend complaint: (1) increasing demand to $50,000; (2) by inserting allegation that at the time of injury, plaintiff and defendant were engaged in interstate commerce; (3) by inserting allegation intended to set up the Federal Safety Appliance Act.

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

<p>Banks — similarity of names — power of court to modify order.</p> <p>Whenever the interests of justice so require courts of record have inherent power to modify their own orders and judgments.</p> <p>The name “ Albany City Savings Bank ” so nearly resembles that of “ Albany Savings Bank ” as to be calculated to deceive, and its use is open to reasonable objection.</p> <p>Where the petition of the “ Albany City Savings Institution ” for a change of its corporate name to “Albany City Savings Bank ” has been granted, an application by the “ Albany Savings Bank” incorporated in 1820, for leave to intervene and to vacate the order changing the name of the other bank, will be granted.</p>

<p>Foreclosure — mortgages — when cut timber becomes personal property free from the lien of the mortgage.</p> <p>Where a mortgagor reserves the right to cut any or all standing timber upon the premises, the mortgagee upon foreclosure has no lien upon timber cut during a period antedating the default in the payment of an installment of principal and interest, even though the premises are not adequate security for the mortgage and the mortgagor is insolvent.</p> <p>The lien of the mortgage, which covered the trees as part of the real estate, ceased to exist when they were cut and became personal property, and cannot be resumed.</p>

<p>Process — defective summons under new" court rules — service set aside.</p> <p>Where the summons served with the complaint was not in the form prescribed by the new court rules in effect since Oeto.ber 1, 1921, a motion to set aside the service of the summons will be granted.</p>

<p>Injunctions — mandatory — restrictive covenants — easements — deeds — restrictions against “barn or private stable ” include garage.</p> <p>A restrictive covenant as applied to land creates an easement which is negative in character when the owner of the servient tenement by such an easement is restricted in the exercise of the natural rights of property.</p> <p>A negative easement when it runs with the land may be enforced in a court of law, but equity will also raise or imply negative easements of an equitable nature when they are not such as a court of law would enforce.</p> <p>The grantee in a conveyance made subject to the covenants and restrictions contained in former recorded deeds affecting the property, is presumed to have knowledge of the same, even though in some of the deeds in the chain of title there is no direct reference to restrictive covenants.</p> <p>Plaintiff and defendant are the respective owners of adjoining premises claiming their title by mesne conveyances from the original owner of both properties. All the mesne conveyances of the defendant’s property, from the original grantee to* defendant, recited that the property was conveyed subject to restrictive covenants of record and the conveyance to defendant was made subject to the “ covenants and restrictions as contained in former recorded deeds affecting said premises.” The original grantee had covenanted for herself, her heirs and assigns, not to erect or permit to be erected upon the premises “ any building other than a private residence costing not less than $5,000, with the exception that a barn or private stable may be erected or used on that part of the premises lying west of a line drawn parallel with East Nineteenth street, and distant seventy (70) feet westerly therefrom,” and by an instrument in writing entered into between the original grantor and the grantee of the original grantee it was agreed that such covenant and restriction should inure to and be for the benefit also of the grantees, heirs and legal representatives of the parties to said instrument, and all persons claiming by, from or under them or either of them. Held, that defendant’s property was subject to the negative easement contained in the deeds to the original grantee of said property.</p> <p>A “ barn or private stable ” mentioned in the covenant was not limited to a stable for horses or any other animals but includes an automobile garage, and the erection of such a structure by defendant upon her own property within seventy feet from East Nineteenth street and within seventeen feet of the side windows of plaintiff’s house and yet more than sixty feet away from the nearest part of defendant’s own residence, is a violation of the original restrictive covenant.</p> <p>The garage having been built by defendant after she had notice from plaintiff that she would claim that it was being erected in violation of the restrictive covenant, the judgment in favor of plaintiff in an .action to restrain such erection will include a mandatory injunction compelling the defendant to remove the garage.</p>

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

<p>Habeas cobpus to inquire into detention.</p>

<p>Mandamus — automobile bus line — public necessity and convenience question for public service commission—consent — city council.</p> <p>The question of public necessity and convenience is for the public service commission to determine, and where the refusal of a city council to give consent to the operation of a bus line is put upon the ground that it is not a public necessity, and not for the best interests of the city nor for its citizens, a peremptory writ of mandamus will issue to compel the city council to issue such a consent to relator who is willing to abide by the rules and regulations prescribed by the city for the use of its streets.</p>

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

<p>Legacies — deceased non-resident legatees — payment to ancillary representatives.</p> <p>A decree for the payment of the sum respectively due to each of two deceased non-resident legatees, should direct such payment be made to the ancillary representative of each estate when appointed, and not to the foreign executors of said legatees.</p>

<p>Application for stay pending the determination of an appeal.</p>

<p>Foreclosure — tax liens — publication of legal notices — constitutional law — Laws of 1921, chap. 546 — Code Civ. Pro. §§ 1434, 1678 — Civil Practice Act, §§ 712, 986.</p> <p>The curative statute (Laws of 1921, chap. 546) entitled “An act to legalize the publication of all legal instruments, papers, documents and notices heretofore published in the Buffalo Legal Daily,” which is not a newspaper within the meaning of sections 1434 and 1678 of the Code of Civil Procedure (Civ. Prac. Act, §§ 712, 986), is a valid exercise of constitutional power.</p> <p>While the legality of the publication of the notices of sale in the Legal Daily of Buffalo, by the referee to sell in actions to foreclose city tax liens on several pieces of property was in question, the curative act of May 4, 1921, was passed. Held, that the sale which was held on January 24, 1921, was valid and that the purchaser there, who asked to be relieved on the ground that said curative act was unconstitutional, will be compelled to complete his purchase.</p> <p>The order to be entered will provide that in the event of the purchaser’s failure to comply therewith, the expenses of a resale of the property by the referee and all losses thereunder, shall be borne by said purchaser.</p>

<p>Injunctions — illegally operating jitneys — evidence — criminal contempt—jail sentence.</p> <p>At the time of the imposition of a fine upon a plea of guilty of having violated an injunction order restraining respondent and his codefendant in the action from illegally operating so-called “jitneys” in competition with plaintiff, a public service corporation, the court admonished each of the defendants that it would deal more severely with them if there was a repetition of the offense. At least twice since then the respondent has' repeated the offense. Held, that where upon motion to punish him as for a criminal contempt, he asserted that he had never violated the jitney law at any time, but the court is satisfied that his version of the service of the injunction order upon him and of the attendant circumstances was clearly false, his denial of the charge made against him is not entitled to credence, and that as to accuse of perjury the complainant’s witnesses whose testimony in the light of all the facts was straightforward and not shaken on cross-examination would be a. denial of justice, the respondent is adjudged guilty of the contempt charged, and sentenced to imprisonment in the county jail for the period of thirty days.</p>

<p>Habeas corpus — relator cannot be released from a custody into which he has not been placed — bail — constitutional law — statutes — Parole Commission Law, § 5.</p> <p>Section 5 of the Parole Commission- Law (Laws of 1915, chap. 579, as amended by Laws of 1916, chap. 287, § 4) is constitutional.</p> <p>The action of the Parole Commission in revoking a prisoner’s parole for breach of the conditions upon which it was granted, is not subject to review.</p> <p>Where relator who is in custody of the warden of the city prison of the city of New York by virtue of a commitment upon a charge of felony, sues out a writ of habeas corpus to avoid, after he has given bail, being taken into custody under an unexecuted warrant of arrest issued by the parole commission revoking his conditional parole, the writ will be dismissed and relator remanded to the custody of said warden.</p> <p>Relator’s contention that said section 5 of the statute is unconstitutional not only because it encroaches upon the judicial functions vested in the judiciary but that it is also an exercise of the pardoning power which is vested exclusively in the governor of the state, is untenable.</p>

<p>Wills — construction of — a university comes within the provisions of section 17 of the Decedent Estate Law.</p> <p>Testator, leaving a widow, bequeathed his residuary estate, exceeding one-half of his net estate, to a university for a special foundation if it would accept the same on the conditions named in the will. Held, that the provisions of section 17 of the Decedent Estate Law apply to a university and that the bequest was valid only to the extent of one-half of the net estate.</p>

<p>Wills — construction of — devise — payment of lump sum to life tenant — accumulation of income on balance of fund to make good depletion of corpus.</p> <p>The will of C. contained the following provision: “I give to my nephew * * * the use of my * * * farm and after his decease I bequeath and devise same to his children or their heirs or assigns forever.” The farm was sold by order of the court, the value of the life estate paid to the life tenant and the balance deposited with the city chamberlain. At the time of the sale the life tenant had a wife and four adult children. Periodically the accumulated income on the fund deposited with the chamberlain was paid to the four children by order of the court. One of the children dying intestate her executor brings this action claiming that under the will of C. the four children took vested remainders and that the deceased daughter’s share in the income of the fund on deposit should be paid to her executor. Held, that irrespective of the vesting or non-vesting of the various interests under the will of C. the income on the fund on deposit with the chamberlain must be left with the fund to accumulate during the life of the life tenant so that the depletion of the corpus by the payment of the lump sum to the life tenant may be made good.</p>

<p>Wills — contested probate—when separate trial of issues disallowed.</p> <p>Where in a contested probate proceeding the issues are interdependent separate trials of framed issues will not be ordered.</p>

<p>Transfer tax proceeding involving question of jurisdiction.</p>

<p>Summary proceedings — payment by tenant of successive installments of rent an admission that lease is not oppressive or! rent excessive — housing statutes.</p> <p>Where in a summary proceeding brought to recover possession of an apartment it appears that the tenant did not avail himself of his statutory right to claim that the rent was excessive until after he had made eight successive payments of rent under the lease, his action will be construed as a conclusive admission that the lease was not oppressive and that he considered the rent reasonable. The housing statutes are intended as a shield against oppression and not as an aid to repudiation.</p>

<p>Motion to dismiss claim for damages.</p>

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

<p>Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, dismissing the complaint, after a trial.</p>

Appeal by defendants from judgments of the Municipal Court of the city of New York, borough of Manhattan, seventh district, fixing the amount of rent to be awarded a landlord as reasonable and fair.

<p>Motions and orders — motion for summary judgment — Rules of Civil Practice, rule 113 — Civil Practice Act, § 1569. Landlord and tenant — duress — Laws of 1920, chap. 136.</p> <p>A motion for summary judgment under rule 113 of the Rules of Civil Practice may be made in any pending action (Civil Practice Act, § 1569) in which such relief can be administered under the terms of said rule.</p> <p>Where iu an action for rent under a lease to which the unreasonable rent defense statute (Laws of 1920, chap. 136) did not apply, the allegations of the answer pleading the defense of common law duress are insufficient, and the moving affidavit used upon a motion for summary judgment asserts that the denials in the answer of all the allegations of the complaint are sham, false and interposed solely for delay, the motion, under section 1569 of the Civil Practice Act, may be granted.</p>

<p>Copyright — sale of production by author — rights of purchaser — — action by purchaser to restrain publication sustained.</p> <p>An author, after he has sold his entire right, title and interest in his literary creation, may not copyright it and grant licenses to others to print, publish and produce it.</p> <p>A complaint alleged that one of the defendants wrote a musical composition entitled “Wicked Blues” which for value he sold to plaintiff; that with knowledge of plaintiff’s right and without his consent said defendant and another of the defendants copyrighted and published the song under the name of “ Crazy Blues; ” that the corporation defendant claims an interest in and is publishing the song with knowledge of plaintiff’s rights; that the other defendants are manufacturing, publishing and selling mechanical contrivances reproducing said song under a license from their co-defendants, without plaintiff’s consent, and without compensation or royalty to him; that certain of the defendants have received from the other defendants large royalties from the publication, sale and reproduction of said song, and threaten to continue the violation of plaintiff’s rights. In an action to restrain the publication and sale of “ Crazy Blues ” and for an accounting of profits, held, that the complaint stated a good cause of action against all of the defendants, to enforce the plaintiff’s common law rights, and that the action was within the jurisdiction of the state courts.</p> <p>The plaintiff, as against the author of the musical composition and all the world, had acquired an equitable right to the first printing and publication of the song and such right was within the cognizance of a court of equity.</p>

<p>Insurance — fraternal benefit societies — beneficiaries — Insurance Law, § 231.</p> <p>Plaintiff’s intestate at the time of his death was a member in good standing of defendant, an unincorporated society, which, though issuing no benefit certificates, is a fraternal benefit society as defined by chapter 198 of the Laws of 1911, which amended the Insurance Law of the state. The wife of decedent, who was the original designated beneficiary of a funeral benefit, predeceased him, and after her death a card was sent to defendant designating as beneficiary one who was not a “ relative to the fourth degree of consanguinity ” as required by section 231 of the statute. Held, that plaintiff, a son of the deceased member and the administrator of his estate, was entitled to recover of defendant the funeral benefit though it had been paid to the improperly designated beneficiary.</p> <p>The by-laws of defendant providing that no change of beneficiary could properly be made except by the beneficial member designating the beneficiary, and having the name entered in the beneficiary book, the card purporting to designate the person named therein was not adequate, even if sufficiently identified, to make her a beneficiary of the deceased within the contemplation of the Insurance Law and the by-laws of the defendant.</p>

<p>Pleadings — when court without power to amend pleadings to conform to proof — equity — contracts — evidence — trial. Insurance — reformation of policy — rights of mortgagee.</p> <p>It is well settled that under an allegation of full and complete performance evidence of a waiver of performance of either covenants or conditions in an insurance policy is inadmissible.</p> <p>Where evidence received over the objection and exception of the opposite party is open to the objections urged against its reception, the court is without legal power to amend the pleadings to conform to the proof.</p> <p>A party must recover in a court of equity according to the case made in his bill, or not at all, and where the evidence upon which a judgment in favor of plaintiff must rest, if at all, is not within the issues framed by the parties, such evidence, though received without objection, must be disregarded and a decree founded thereon will be reversed.</p> <p>Parties to a contract may provide that the performance of any requirement is a prerequisite to a recovery on the contract, and in that event due performance or adequate excuse for failure to perform, must be alleged in the complaint.</p> <p>The time when an action may be brought upon a contract may be regulated by the parties as well as any other condition contained in their agreement.</p> <p>A complaint, after alleging that defendant, in consideration of a cash payment by it to plaintiff, agreed to insure two barns on her farm in the aggregate amount of $700, said insurance to commence on June 17, 1920, and to expire at noon June 17, 1923, further alleged that defendant in pursuance of said agreement issued its policy, “but in violation of said agreement and as plaintiff is informed, by mistake and clerical error, or if not by mistake on the part of said defendant, then said defendant through its officers and agents, intending to cheat and defraud this plaintiff, said policy was dated several weeks ahead of the date on which it was issued and did assume to be issued the 2nd day of July, 1920, and did assume to extend to the 2nd day of July, 1923,” and that “plaintiff had no knowledge of said mistake or fraud and that said dates were placed in said policy and permitted to remain there and said policy accepted and permitted to continue in the form in which it was drawn, all by the mistake of this plaintiff and contrary to the express agreement therefor orally made.” It was then alleged that on or about the 30th day of June, 1920, the insured property was destroyed by fire and that plaintiff’s loss was in excess of $700; that “ promptly thereafter plaintiff did give notice of said loss and did promptly and duly furnish the defendant with proof of said loss, which proof was accepted and retained by defendant, and plaintiff has otherwise duly performed all the conditions of said policy and agreement on her part to be performed; ” that more than ninety days have elapsed since the furnishing of said proof of loss and no part of said loss has been paid, and that there is due and owing the plaintiff from the defendant insurance company the sum of $700, with interest from October 1, 1920. The demand for judgment was that the policy be reformed “ to conform to the intention of the parties thereto, in that the term during which said insurance is in force be stated to be from June 17th, 1920, at noon, to June 17, 1923, at noon,” and that plaintiff have judgment for the amount of the loss occurring on the day of the fire. The issue of the alleged mistake in the date of the policy, or of intended fraud, raised by the answer, depended upon whether there was an agreement that the policy should cover the period between the 17th day of June, 1920, and the date of the fire. The evidence for the plaintiff, who had nothing to do with the negotiation for the policy, failed to establish that there was any agreement as to the exact term for which the policy was to be issued, and all that the evidence fairly showed was that plaintiff’s husband, who did all the business, asked defendant’s agent for some insurance, because the mortgagee had told him the other policies “would run out” and that he (the mortgagee) wanted some new policies right away, and there was no evidence that the agent did anything to prevent plaintiff from knowing the contents of the policy. Reid, that there was no mutual mistake, such as is necessary in the reformation of written instruments, in the absence of fraud, and plaintiff having failed to establish that the agreement was such as was pleaded was not entitled to recover anything against the defendant insurance company.</p> <p>The plaintiff in accepting the policy agreed to its lawful terms, one of which required a statement under oath as to the origin of the fire, etc., within sixty days, and if she expected to show a waiver of performance of this condition by defendant she was bound to plead it; she could not allege due performance of the provisions of the policy, and when this was denied by the answer, change front on the trial, conceding her statement was untrue, and establish facts excusing performance.</p> <p>While the mortgagee’s interest in the insurance moneys was preserved by his filing of proof of claim this did not extend beyond what was necessary to preserve his interest in the entire property, as it stood before the fire, and the defendant owed nothing beyond the mortgagee’s interest, in excess of the sum realized on the sale of the property.</p>

<p>Wills — construction of — gift to nephews and nieces includes descendants of stepbrother and stepsister.</p> <p>Under a gift of a residuary estate to “my nephews and nieces who may survive me” descendants of the stepbrother and of the stepsister of testatrix share with the nephew and nieces of the blood.</p> <p>Proceedings on the construction of a will in an accounting proceeding.</p>

<p>Action by vendor to compel the specific performance of an alleged contract for the sale of certain real estate.</p>

<p>Civil service — removal of employee — mandamus — Labor Law (Laws of 1921, chaps. 50, 642) — Civil Service Law (Laws of 1920, chap. 836), § 22-a.</p> <p>The provision of section 18 of the revised Labor Law (Laws of 1921, chap. 50) as amended by chapter 642 of the laws of the same year, that the Industrial Commissioner, notwithstanding any other general or special law, saving and excepting section 22 of the Civil Service Law, “ may remove any * * * employee in the department,” relieves said commissioner from complying with the requirement of section 22-a of the Civil Service Law (added by Laws of 1920, chap. 836) directing that suspension be made in the inverse order of appointment.</p> <p>The reason assigned for the suspension of relator from his position of factory inspector in the department of labor was that the reduced appropriation for the department for the current year necessitated a reduction in the number of factory inspectors. Relator’s petition for a peremptory writ of mandamus to compel his reinstatement alleged that when he was laid off other factory inspectors who had been appointed more recently than he were reinstated, and that at the time his services were discontinued one P. was appointed a factory inspector to take his place. A denial of these allegations was coupled with allegations that P. was already in the department as a factory inspector, that he was notified of his suspension as such at the same time as petitioner but upon discovery that the appropriation was sufficient to warrant his retention the notice to P. was withdrawn before it took effect. Held, that petitioner had no ground for complaint and his application will be denied but -without prejudice to a motion for an alternative writ of mandamus.</p>

<p>Motion for an order of mandamus directing defendants to retire petitioner, who is a veteran, from his empoyment by the city of Rochester and to pay to him an annual sum equal to one-half the wages paid to him in the last year of his employment.</p>

<p>Motion to vacate temporary injunction.</p>

<p>Contracts — unfair competition — former employee — injunction.</p> <p>In an action to enforce a covenant in a contract that defendant upon leaving the employ of plaintiff, who was engaged in the laundry business, would not in any way solicit plaintiff’s customers or engage in a competitive business on his former route for a period of two years, an injunction pendente lite will be granted.</p>

<p>Appeal from judgment of the Municipal Court of the city of Syracuse in favor of plaintiff.</p>

<p>Partition — tenants in common — title in defendant by adverse possession held to have been established — complaint dismissed.</p>

Proceedings upon the settlement of the account of trustees. When this matter was first before this court it was on a citation issued requiring the executors to account as such. Executor McDowell filed a complete account of his transactions with reference to the estate, both as executor and trustee. Executors Decker and Lang-don filed a verified statement setting forth, in substance, that they had had nothing to do with the estate after the taking of the inventory.

<p>Injunction — to restrain removal of steam railroad tracks lawfully laid in a street under a permanent permit granted by the common council of the city of Jamestown in 1887 — presumption that such occupation was duly authorized — judgment in favor of plaintiff.</p>

<p>Summary proceedings—Code Civ. Pro. §5 2232, 2236—holding over after notice to quit ■—• who is a “ squatter ”— landlord’s remedy for breach of covenant against .assignment of lease — acceptance of rent from assignee — when petition defective in description of lessor’s interest in premises — proceeding dismissed.</p>

<p>Parole Commission Law (Laws of 1915, chap. 579)—conditional parole only a privilege, not a right — act of commission issuing a warrant for recapture not reviewable on certiorari.</p>

<p>•Claim for damages resulting from defective canal feeder.</p>

<p>Claim for damages caused by leakage from Erie canal.</p>

<p>Claim for damage sustained through breach of contract.</p>

<p>Taxation — certiorari to review assessment of special franchise for bridge crossing the Susquehanna river at a certain point — test of navigability of rivers — Susquehanna river in 1801 was a public highway — Tax Law, § 2(7)—tax annulled and amount paid thereon refunded, with interest.</p>