Volume 117 — New York Miscellaneous Reports

<p>Wills — construction of — when general legacies will not be charged against real estate — relationship of parent and child as to residuary devisee outweighs any intent which might be inferred by reason of a power of sale.</p> <p>An intention to charge real estate with the payment of legacies will not be inferred if decedent may have been mistaken in her judgment as to the value of her property or was in reasonable expectancy of increasing her personal estate before her death.</p> <p>The primary fund for the payment of general legacies is the personal estate unless the will expressly declares otherwise, or a clear intention to the contrary is to be gathered therefrom, which may be aided by extrinsic evidence; if the con-, trary intention is not expressed in the will, then it must be clearly and satisfactorily inferred.</p> <p>An intention to charge the real estate of a testatrix will not be inferred from a disparity between the amount of the estate and the legacies, if the testatrix might have been unconscious of its existence, or mistaken in her judgment.</p> <p>As between a power of sale in a will being a basis for a charge of legacies upon the real estate and the existence of the relationship of parent and child as showing an intention not to create such a charge, the latter is of controlling importance and an outweighing factor on the question of the intent of the testatrix.</p> <p>Decedent, most of whose property was acquired under the will of her late husband, died at the age of seventy-six years, leaving her surviving no children of her body or descendants of any such. After certain general legacies, amounting to $40,500, not specifically charged upon her real estate, to her sister, nieces and nephews and to relatives of her deceased husband, all the rest, residue and remainder of her estate, both real and personal, was devised and bequeathed to “ Florence A. Coombs, who grew up as a child in my family and lived with me for many years, the same to have and to hold forever,” and the executor was given full power of sale over the real estate. When the will was executed, about fifteen months before the death of testatrix, exclusive of 20,000 shares of the United States Tin Company of the par value of one dollar per share, and certain mining stock which had not been. transferred from her husband’s name, the personal estate of testatrix amounted to about $25,000. Without testimony as to the intention of testatrix it was stipulated by all parties in interest that both at the date of the will and also at the date of the death of testatrix, the stock in both corporations had no value. The residuary legatee was a second cousin of testatrix, and from the time she was two years old stood in the mutually acknowledged relationship of parent and child to both the testatrix and . her husband, was educated by them at private schools and at her marriage at the home of decedent was given a large wedding. Certain of the other legatees, relatives of decedent’s husband, also lived with her for a while but not in the relationship of parent and child. Held, that the burden of proof resting upon the general legatees to show that it was the intent of testatrix to charge their legacies upon her real estate, had not been sustained, and it is accordingly decreed that said legacies are not a charge upon the real estate left by decedent.</p>

<p>Transfer tax — strict construction of statute — where a tentative trust is not revoked upon donor’s death a presumption arises that an absolute trust was created and the life estate created thereby is not subject to a transfer tax — Laws of 1905, chap. 368, § 220, subd. 3.</p> <p>The transfer tax is the tax on the privilege granted by the state to an individual to succeed to the property of a deceased person; and a statute imposing such a tax must be strictly-construed against the state and upon it lies the burden of proving the tax.</p> <p>By a trust deed expressly reserving to the grantor at her will and pleasure, by will or other written instrument signed by her and delivered to the other party to the trust deed, full power to revoke it and all the trusts, powers and rights thereby created, a tentative trust is created, but upon the donor’s death without having revoked the trust deed, the presumption arises that an absolute trust was created.</p> <p>Such a deed constitutes a transfer of a life estate in property provided for in the deed, and in the absence of extrinsic evidence showing that the deed was intended to take effect after the donor’s death, it must be held that, within the meaning of the statute (Laws of 1905, chap. 368, $ 200, subd. 3) in force at the death of the donor, the deed was intended to and in fact did take effect in possession and enjoyment at its date and the life estate created thereby is not subject to a transfer tax.</p>

<p>Claim against the state for lands appropriated.</p>

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

<p>Applications for appointment of general guardian.</p>

Appeal by plaintiffs from, judgments of the City Court of the city of New York dismissing their complaint at the close of plaintiffs’ cases.

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

<p>Elections — ballots — cross mark of four lines held not void.</p> <p>Upon the canvass of the votes cast at the general election held November 8, 1921, the board of inspectors set apart one ballot as void as to the vote for overseer of the poor of the town of Green Island, because, as appeared upon the examination under an order to show cause, in the square to the left of the name of the Republican candidate for that office, the voter, an intelligent man, made a cross mark consisting of four lines. Held, that taking into consideration the admission that such mark could not have been made for the purpose of identification and that the voter’s hand was somewhat tremulous, that he voted a split ticket, the ballot should not have been declared void, and an order will be granted directing a recanvass of the vote for overseer of the poor by correcting the same in accordance with the decision hereon.</p>

<p>Demurrers to an alternative writ of mandamus.</p>

<p>Highways — nuisance — unreasonable obstruction of a street constitutes a public nuisance — injunction.</p> <p>The primary purpose of a'street is for traveling, and whatever causes an unreasonable obstruction or interference therewith constitutes a public nuisance.</p> <p>Where in an action to restrain defendant, a board of trade corporation, from unlawfully occupying and obstructing a street within the financial district of the city of New York, it is clearly established to the satisfaction of the court that plaintiffs are being subjected to special damages by reason of the defendant and its members continuing to conduct in said street, in the immediate neighborhood of plaintiffs’ properties located on said street, an open air market for the sale of securities, a motion for an injunction pendente lite will be granted.</p> <p>Such occupancy of the street by defendant and its members for business purposes constitutes a flagrant public nuisance, and had the police, as in duty bound, removed from the street all persons attempting to use it for trading purposes in the manner complained of, the application for injunctive relief would have been unnecessary.</p>

<p>Proceedings on an appeal from an order assessing a transfer tax.</p>

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

<p>Jurisdiction — County Courts — residence — a general appearance waives lack of jurisdiction. over defendant’s person Civil Practice Act, § 278.</p> <p>A County Court may acquire jurisdiction over ire person of a defendant even though he be a non-resident of the', county wherein the action is brought.</p> <p>A defendant in a County Court action by the service oJ,a general notice of appearance waives his right to question tht>\ jurisdiction of the court over his person.</p> <p>Where the defendant has appeared generally in the action his motion for a dismissal of the complaint under section 278 of the Civil Practice Act, upon the ground that it must appear upon the face of the complaint that he resides in the county in which the action is brought, will be denied, even though the complaint fails to allege that he is a resident of the county in which the action is brought.</p>

Appeal by plaintiff from three orders of the Municipal Court of the city of New York, borough of Manhattan, sixth district, vacating a judgment obtained by plaintiff upon defendant’s default.

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of plaintiff, after a trial by a judge and jury.

Appeal ¡by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, dismissing the complaint upon the merits.

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

Appeal by defendant from order of City Court of Buffalo directing the issuance of a commission on behalf of plaintiff to take plaintiff’s deposition as a material witness.

<p>Motion to dismiss complaint upon the pleadings under rule 106 of the Buies of Civil Practice.</p>

<p>Action for separation. On motion to confirm report of referee.</p>

<p>Injunction — public health — delivery of milk cannot be subservient to controversy concerning wages.</p> <p>The health of an entire community must not be made subservient to the right or wrong of a controversy concerning wages.</p> <p>Any organized effort to interfere with the uninterrupted delivery of the milk supply to the people of the city of New York is an act of hostility to the public weal and will be enjoined.</p>

<p>Action on a check tried before the court without a jury.</p>

<p>Appeal from judgment of -the City Magistrate’s Court, borough of Manhattan, city of New York, convicting defendants of violation of city ordinance.</p>

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

<p>Motions and orders — partial judgment — admission in answer of part of amount due — Rules of Civil Practice, rules 113, 114.</p> <p>The words “ such defense ” in rule 114 of the Rules of Civil Practice plainly have reference to the defense specified in the preceding rule 113, and when the two rules are read together, as they must be, the remedy afforded by rule 114 can be granted only in a case in which a summary judgment may be entered under rule 113.</p> <p>Where in an action to recover money alleged to be due under contracts of employment the answer admits that a certain sum, a part of the entire claim, was found to be due plaintiff at the date of an accounting between the parties of the transactions constituting the subject matter of the action, a motion under rule 114 of the Rules of Civil Practice for final judgment for the part so admitted to be due, will be granted, even assuming that every allegation in separate defenses be proven to be true.</p> <p>The historical source of both of said rules stated.</p>

<p>Cboss-motioxs for judgment on the pleadings.</p>

<p>Judgment—motion for summary judgment—moving affidavit held insufficient — practice of submitting successive affidavits disapproved — Rules of Civil Practice, rule 113.</p> <p>Where to a complaint alleging an account stated the answer is a general denial, the case is not within rule 113 of the Civil Practice Buies, and a motion by plaintiff for summary judgment will be denied.</p> <p>Upon a motion for summary judgment under rule 113 of the Civil Practice Buies the practice of submitting successive affidavits, piecing and stringing out the assumed right to such a judgment, resolves itself into a trial by affidavit and creates a condition which ought not to obtain, and is, therefore, of doubtful propriety.</p>

<p>Criminal procedure — murder — evidence—weight to he given recantation of witness — newly discovered evidence — effect of conviction of recanting witness for perjury—accomplice — necessity of corroboration — conflicting statements — when court need not hear witnesses orally upon motion for new trial — new trial granted because of false testimony of principal witness for prosecution — Code Grim. Pro. § 465(7).</p> <p>After an important witness for the prosecution in a capital case had recanted, the sentence imposed upon defendant was commuted to imprisonment for life. At the time of the argument of a motion for a new trial on the ground of newly discovered evidence, to wit, that the recanting witness had committed perjury on the trial of defendant, said witness was awaiting trial under an indictment charging him with such perjury. Held, that if the court was satisfied that the recantation of the witness was not of such weight as to require the granting of the motion for a new trial, it was its duty to disregard the verdict of the jury convicting said witness of perjury in the giving of his testimony on the trial of defendant.</p> <p>Upon consideration of the records on the trial of defendant and on the trial for perjury, held, that the testimony given by the recanting witness on the trial of defendant was of such basic importance as to require the court to grant the motion for a new trial, it appearing that the preponderance of evidence, considered apart from the conviction of the recanting witness for perjury, shows that he did commit perjury against those charged with the murder; the perjury need not be established beyond reasonable doubt.</p> <p>Where the record discloses that witnesses have already been examined, the court is not called upon to hear them orally as it might under section 465(7) of the Code of Criminal Procedure.</p> <p>The possible reversal of the judgment convicting the recanting witness of perjury on the trial of defendant has no bearing upon the motion for a new trial, need not be considered, and the motion will be granted.</p>

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

<p>Appeal by landlord from final order of the Municipal Court, borough of Manhattan, first district, dismissing petition in summary proceedings.</p>

<p>Torts — claims against state — Court of Claims — jurisdiction — damages — prison inmate — immunity of state from liability for torts of its agents is not relinquished by a statute waiving notice of claim — Laws of 1920, chap. 726.</p> <p>Claimant, an inmate of Clinton prison, while at work in the weave shop was injured by being caught in a moving pulley on which he was attempting to adjust a belt under the direction of the person in charge. Held, that while by the statute (Laws of 1920, chap. 726) conferring jurisdiction only upon the Court of Claims to hear and determine the claim for damages, the state had clearly waived its immunity from suit and the due filing of a notice of intention, this was not in and of itself sufficient to substantiate the claim in view of the expressed declaration of the statute that facts establishing liability on the part of the state must be proved as a condition precedent to Hie making of an award.</p> <p>Claim dismissed for failure to state facts sufficient to constitute a cause of action.</p>

<p>Transfer tax — evidence — residence — presumption in favor of an original as against an acquired domicile — burden of proof — property of decedent as non-resident subject .to tax — Tax Law, § 243, as amended by Laws of 1919, chap. 629.</p> <p>By virtue of section 243 of the Tax Law (Laws of 1916, chap. 551, as amended by Laws of 1919, chap. 629), the burden of proof in a transfer tax proceeding is upon those claiming exemption by reason of the alleged non-residence of their decedent, which declares that “ every person shall be deemed to have died a resident and not a non-resident of the state of New York if and when such person shall have dwelt or shall have lodged in this state during and for the greater part of any period of twelve consecutive months in the twenty-four months next preceding his or her death.”</p> <p>Decedent, who was born at Greenwich in the state of Connecticut in 1839, died in the month of July, 1920, at Port Chester, New York, where he had continuously resided with his family since January, 1900, having acquired real estate there by inheritance. He never resided elsewhere than at either of these two places, both of which are not far distant from the boundary line dividing the states of Connecticut and New York. He was made a freeman in Greenwich in 1861 and continued to exercise his communal relations in Connecticut until 1913, always attending and taking part in the town meetings. He never voted elsewhere and in more than four hundred deeds, mortgages and other papers recorded in Greenwich, in Westchester county and Kings county, N". Y., he was always mentioned and described as a resident of Greenwich and he declined to receive or execute papers in which he was otherwise described, and furthermore he protested his assessments in Port Chester. No attempt was made by the state tax commission, in a transfer tax proceeding, to controvert these facts, established by the executor. Held, that the burden laid upon the executor by the statute has been met by evidence abundant and convincing, indicating an undeviating determination on the part of decedent not to abandon his domicile of origin in the state of Connecticut, either in law or fact, and that domicile must govern in the administration of his estate.</p> <p>A contention on behalf of the state tax commission that a residence of years in another state in conjugal relationship supplies the intent to change a person’s domicile and in fact creates a new domicile of choice for him without the operation of his mind, is untenable under the decision in Dupuy v. Wurtz, 53 N. Y. 556-561.</p> <p>The transfer tax proceeding remitted to the transfer tax appraiser in Westchester county, N". Y., to appraise the property of the decedent therein, as a mon-resident under the provisions of section 243 of the Tax Law in force at the time of decedent’s death.</p>

<p>Landlord and tenant — housing laws — reasonable rental of apartments — tenant holding over — defense of ‘ ‘ unreasonable and unjust rent under oppressive agreements ’ ’— Laws of 1920, chap. 944 — Laws of 1921, chap. 434.</p> <p>Where a lease for not less than a year at a fixed rent expired on September 30, 1921, the tenant, though holding over without a renewal of his lease, is a tenant under chapter 944 of the Laws of 1920, and in a proceeding to dispossess him for non-payment of the rent for October, 1921, he is entitled to interpose the defense of “unreasonable and unjust rent under oppressive agreements.”</p> <p>The statute (Laws of 1921, chap. 434) amending the housing laws has no application to such a tenant.</p>

Action to impress a lien in favor of the plaintiff as the holder of a mortgage upon certain proceeds of insurance on a building destroyed by fire.

<p>Adverse possession ■—tenants in common — dower—guardian in socage — action to determine claim to real property — widow’s possession held not to be adverse to her husband’s heirs.</p> <p>The legal presumption is that the possession of one of several tenants in common is that of all.</p> <p>One of several tenants in common may acquire title against the co-tenant by adverse possession, but in order to do so, the possession must be such as to constitute an exclusion or ouster of the co-tenants evidenced by an open, notorious and adverse occupation under a claim of right.</p> <p>A widow entitled to dower is during the minority of her infant children entitled as their guardian in socage to the possession of premises in which the children have an undivided interest.</p> <p>Where a widow originally became possessed of real estate of which her husband died seized rightfully as dowress and guardian in socage and not adverse to her deceased husband’s heirs at law, such occupancy will be deemed subordinate to their lawful claims unless there was a definite, open and unquestionable change of position.</p> <p>Zapf v. Carter, 70 App. Div. 395, distinguished.</p> <p>Evidence in an action to determine a claim to real property of which the husband of plaintiff’s testatrix, many years ago, died seized, considered, and held, that there being a failure to prove an occupancy of the premises by plaintiffs’ testatrix who devised the same, under a claim of title adverse to that of her stepson and daughters, defendants were entitled to judgment.</p>

<p>Receivers — commissions and counsel fees — partnership — commissions on delivery of valuable horse by receiver to plaintiff fixed at reasonable amount to be paid by defendant.</p> <p>Under a contract by which plaintiff and defendant became partners or joint adventurers in a stallion defendant was to keep the horse in California until the end of the season of 1920 and plaintiff was to keep him in Kentucky for the seasons of 1921 and 1922, after which time arrangements satisfactory to both parties were to be made. At the end of the season of 1920 defendant refused to deliver the horse as agreed. Thereafter in an action for the dissolution of the partnership, an order granting mandatory injunction directing the delivery of the stallion to plaintiff was affirmed on appeal, and the receiver appointed to carry out the order did so without litigation or ancillary receivership in California and delivered the horse to plaintiff on May 23, 1021, in good condition. Held, upon motion to fix the compensation of the receiver, etc., that plaintiff was entitled to be reimbursed for the taxable expenses caused by defendant’s unwarranted acts, and though the dissolution action was undisposed of, the services of the receiver, admittedly worth $5,000, and those of his counsel, proven to be worth $500, should be paid by defendant, and it is so ordered.</p>

<p>Argument of demurrer to complaint in suit for . reformation of contract.</p>

<p>Motion to vacate an order of arrest.</p>

<p>Application for reargument of two motions for peremptory writs of mandamus. •</p>

<p>Motion for consolidation of probate proceedings.</p>

<p>Proceeding for judicial construction of will .on settlement of trustee ’s account.</p>

<p>Settlement of account of executor of deceased executrix.</p>

<p>Transfer tax — husband and wife — joint tenancies in personal property created prior to the addition of subdivision 7 to section 220 of the Tax Law (Laws of 1915, chap. 664) and tenancies by the entirety created prior to the amendment of said subdivision by chapter 323 of the Laws of 1916 are taxable upon one-half of their respective values upon the death of one of the tenants — such tenancies created subsequent to the above enactments taxable at full value—contribution by survivor to fund immaterial.</p> <p>Where a joint tenancy in personal property was created prior to the addition of subdivision 7 to section 220 of the Tax Law (Laws of 1915, chap. 664) and a tenancy by the entirety was created prior to the amendment of said subdivision by chapter 323 of the Laws of 1916, one-half of the value of the personal property and one-half of the value of the real property is taxable upon the death of one of the tenants. Where such tenancies were created subsequent to each of the enactments above referred to the entire value of the personal property and the real property is subject to a transfer tax.</p> <p>Proof that the survivor contributed all of the funds that went into the purchase of the properties was not a reason for a modification of the order made herein, and the same is affirmed.</p>

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

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

Appeal by the tenant from a final order awarding possession of the premises to the landlords, and also from an order denying the tenant’s motion for a new trial.

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

Appeal by the plaintiff from a judgment of the Municipal Court of the city of NeAV York, borough of Manhattan, third district, dismissing the complaint upon the merits.

Appeal by the landlord from a final order of the Municipal Court of the city of New York, borough of Manhattan, second district, dismissing his petition for the removal of the tenant as a holdover.

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

<p>Brokers—commissions — lessee held liable for services in procur- • ing lease when commission cannot be secured from the owner.</p> <p>The mere fact that a broker was employed by the owner of real estate to procure a lessee therefor does not preclude the broker from being also employed by another to submit to the owner an offer to rent the premises.</p> <p>Defendant at the time he stated to plaintiff, a real estate broker, “ If you can get that house for two years for $250 a month I will take it,” was aware that the plaintiff would obtain a commission from the owner of the premises. In consequence of defendant’s failure to make a certain payment to be made on delivery of the lease, it did not become effective and plaintiff failed to earn any commission from the owner of the premises. Held, that defendant’s statement was an employment of plaintiff to act as defendant’s agent in the matter, and that defendant was liable in damages for breach of his agreement with the plaintiff, and the judgment in favor of plaintiff will be affirmed.</p>

Appeal by the plaintiff from a judgment entered in the City Court of the city of New York dismissing the complaint at the close of the plaintiff’s case, and from an order denying a motion for a new trial.

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

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

<p>Appeal from a judgment in favor of the plaintiff, after a trial in the Municipal Court of the city of New York, borough of Queens, first district. The action was for goods sold and delivered, consisting of lumber to the agreed value of $211.87.</p>

Beargument of appeal by landlord from a final order of the Municipal Court of the city of New York, borough of Brooklyn, sixth district, in favor of the tenant entered upon the verdict of a jury.

Appeal by the landlord from a final order dismissing his petition to regain possession of the premises occupied by the tenant as a store only, after a trial in the Municipal 'Court of the city of New York, borough of Brooklyn, second district.

Defendant appeals from a judgment rendered in the Municipal Court of the city of New York, borough of Queens, third district, for fifty dollars in favor of the plaintiff.

Action to restrain the defendant from cutting off or disconnecting the pipes supplying water to the plaintiffs’ premises.

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

Motion by defendant Harry Perhnan for judgment on the pleadings and for a dismissal of the complaint as against him in an action brought by his wife for damages for personal injuries alleged to be due to the joint negligence of the defendants.

<p>Motioft to vacate and set aside a search warrant issued pursuant to section 802-b of the Code of Criminal Procedure.</p>

<p>Motion to set aside a search warrant and to dismiss indictment.</p>

<p>Settlement of executors’ accounts.,</p>

<p>Street railways — fare — municipal corporations — franchise — legislative authority — legislature has full power to determine conditions local authorities may attach to railroad consents—rate of fare subject to regulation by legislature—• city of Troy — public service commission has jurisdiction to fix rates, notwithstanding franchise agreement — writ of prohibition denied — Public Service Commissions Law, as amended by Laws of 1921, chap. 335.</p> <p>While a city although having no constitutional authority to prescribe the rate of fare may impose as a condition to the giving of its consent to the operation of a street railway within the corporate limits that a stipulated rate of fare shall be charged, the legislature has full power to determine the conditions that local authorities may attach to railroad consents to be given in the future.</p> <p>The state’s right to regulate fare, which necessarily includes the power to increase the same, if inadequate, is an implied part of any contract for the operation of a railway upon the streets of a city and the rate of fare provisionally fixed by such a contract is subject to regulation by the legislature.</p> <p>Where, therefore, the United Traction Company, the successor in interest of several street railroads formerly operating under franchises created by the city of Troy on August 5, 1890, and at various times thereafter down to November, 1895, upon consents which provided that the rate of fare to be collected should not exceed the sum of five cents, made an application to the . public service commission, which under the statute (Public Service Commissions Law, as amended by chapter 335 of the Laws of 1921), has full jurisdiction to fix reasonable rates “notwithstanding that a higher or lower rate, fare or charge has been heretofore prescribed by general or special statutes, contract, grant, franchise condition, consent or other agreement,” for permission to increase its rate of fare within the city to the sum of eight cents, an application on the part of the city for a writ of prohibition commanding the public service commission and the railway company to refrain from proceeding on such application for an increase of fare will be denied, on the ground that there being no question involved as to the annulment of a condition, the abrogation of a defeasance or impairment of an obligation, the commission has both jurisdiction and power to grant the particular relief asked for, so far as the local franchises are concerned.</p>

<p>Action in equity to procure a judgment for an abatement on the purchase price of real property by reason of an alleged defect in the title and that upon payment of the residue of the purchase money the defendant be directed to specifically perform the agreement, or should the court adjudge that the defendant cannot convey a good title that the plaintiff have a money judgment for $1,000 paid as a deposit on the said purchase price with interest and for costs and expenses of examination of title and damages.</p>

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

<p>Action to enjoin defendants from hunting upon premises fronting on Cayuga lake of which the plaintiffs are the lessees and claim to he entitled to the exclusive privilege of hunting thereon.</p>

<p>Action for damages for alleged breach of contract for sale of real estate.</p>

<p>Action on policy of insurance.</p>

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

<p>Habeas corpus.</p>

<p>Motion for judgment on the pleadings under rule 107 of the Rules of Civil Practice and for a dismissal of the complaint.</p>

<p>Action for interpleader.</p>

<p>Action for absolute divorce.</p>

<p>Infants — guardian — service of process — service on general guardian of property of non-resident infant insufficient — application for guardian ad litem denied as premature — Civ. Pr. Act, § 225.</p> <p>The “ guardian ” specified in section 225 of the Civil Practice Act does not include a general guardian of the property of an infant, appointed by a decree of the Surrogate’s Court.</p> <p>An application, therefore, by such a guardian to be appointed guardian ad litem of a codefendant, an infant under the age of fourteen years, will be denied as premature, it appearing that service of the summons and complaint has not in fact been made on the infant by delivery thereof to said general guardian.</p>

<p>Banks and banking — incompetent persons — trustees — savings bank account — ownerhip of fund in trust cannot be summarily determined by motion — bank book not produced.</p> <p>Where a savings bank account stands in the name of “ Rosie Haberman in Trust for Frederick Haberman," an incompetent, the court, on motion of his committee for an order directing the bank to pay over money to the credit of said account and claimed to belong to the incompetent, is without power to summarily determine that the money deposit was the property of the incompetent before deposit made by Rosie Haberman, his stepmother, that her act in depositing in trust was the act of a trustee or that the deposit “ in trust for ” entitles the incompetent to the fund.</p>

<p>„Wbit of habeas corpus.</p>

<p>Criminal procedure — sentence — habeas corpus — defendant cannot show on habeas corpus a change in the decision of the magistrate in imposing sentence — judgment of commitment reviewable by appeal only — city of New York — Inferior Criminal Courts Act, § 88(3).</p> <p>Under section 88(3) of the Inferior Criminal Courts Act, a magistrate in the city of New York, upon convicting a defendant of disorderly conduct, may lawfully impose a sentence of six months in the workhouse, and a warrant of commitment reciting such a sentence is a final judgment, reviewable only by an appeal.</p> <p>A defendant so convicted and sentenced is precluded from showing on habeas corpus that the magistrate, after sentencing him to pay a fine and serve three months in the penitentiary, changed the decision and imposed the sentence recited in the warrant of commitment, and the writ of habeas corpus will be dismissed and relator remanded.</p>

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

<p>Libel — publication of newspaper articles indicating plaintiff’s disinclination to work — ridicule — defendant’s motion for judgment on pleadings denied.</p> <p>Where the publication in a daily newspaper of two articles written of and concerning the plaintiff, the Prince d’Aragon, an ancient, noble and honorable family of Spain, indicating a disinclination on his part to avail himself of the opportunity to work which had been provided for him, may have tended to subject him to public ridicule and scorn, defendant’s motion for judgment on the pleadings on the ground that neither of the articles is libelous per se and that in the absence of an allegation of special damage the complaint is fatally defective, will be denied.</p>

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

<p>Contracts—non-residents—attachment—jurisdiction of Supreme Court—General Corporation Law, § 47.</p> <p>A written contract between plaintiff, a non-resident, and defendant, a foreign corporation, executed in the state of Hew York, contained the following provision: “ First. It is agreed that while for convenience this agreement is signed by the parties in the City of Hew York, United States of America, it should be considered and held to be as one duly made and executed in London, England.” Held, that under section 1780, subdivision 1, of the Code of Civil Procedure (now General Corporation Law, § 47) the Supreme Court of the state of Hew York has jurisdiction of the action and that a levy under a warrant of attachment of defendant’s interest in certain options on oil properties in a foreign country will be upheld.</p>

<p>Waters and water courses — lands bounded on rivers and streams above tidewater—rules of the English common law do not apply to lands bordering on the Hudson river and the Mohawk river — the title to the bed of the Hudson river and the bed of the Mohawk river is in the state of New York— franchises — compensation for appropriation of lands in accordance with the provisions of the Barge Canal Act — title to the bed of the Hudson river in the state of New York not divested by chapter 164 of the Laws of 1901.</p> <p>The state of New York, pursuant to chapter 147 of the Laws of 1903, appropriated for the Champlain canal lands and flowage rights of claimant extending on both sides of the Hudson river above tidewater for a distance of about two and one-half miles. The lands form part of original grants under English Colonial Patents. By chapter 164 of the Laws of 1901 claimant was “ authorized to construct a dam across the Hudson river on the lands now owned by it or which it shall hereafter purchase or acquire * * * to forever maintain said dam and to flood back up said river so far as it owns or shall hereafter purchase or acquire the adjacent uplands * * for the purpose of maintaining the pond formed by such dam; and any interests of the state in lands under the waters of said river covered by said dam or which may be flooded by the erection thereof or under any works which said company shall construct on or adjacent to said dam is hereby granted to said company, its successors and assigns.” Claimant did not construct its dam and never obtained the consent of Congress to do so in accordance with the River and Harbor Act of March 3, 1899, but, relying upon said act of the legislature, it acquired a considerable part of its frontage on said river and made expenditures for the development of its property in reliance upon the provisions of said act. Held, that the rule of the English common law that grants which are bounded on rivers and streams above tidewater are presumed to extend to the middle of the stream has never been applied to colonial grants or state grants of lands bordering on the Hudson river and the Mohawk river, these rivers being an exception to the general rule because of their size, location and commercial importance, and the public use made of them from the earliest days as means of transportation and communication; that at the time of the enactment of chapter 164 of the Laws of 1901 the title to the bed of the river was in the state of New York and that the state’s ownership was not divested and vested in claimant by the mere passage of said act. It was contemplated by said act that a dam should be erected and certain works constructed, in which event the title of the state to the lands under the waters of the river covered by said dam or flooded by its erection should pass to claimant. Said act, however, did grant to claimant a franchise which, having been accepted and acted upon,' cannot be repealed, revoked or destroyed by the state appropriating it without compensation. The state having appropriated claimant’s land in accordance with the provisions of the Barge Canal Act, claimant is entitled to compensation for its property taken for the public use, and for a judgment against the state in the amount of $250,000, with interest from June 30, 1913.</p>

<p>Traffic regulations — city of New York.</p> <p>Article 5 of the traffic regulations of the city of New York provides: “ * * * Section 2. A vehicle’s driver when about to turn either from a standstill or while in motion, shall give timely signal by hand or whip or in some other unmistakable manner to indicate the direction of the turn. * * * Section 4. Police Whistle signals shall indicate: One blast — N. and S. traffic stops and E. and W. proceeds. Two blasts — E. and W. traffic stops and N. and S. proceeds. Three or more blasts — The approach of fire apparatus or other danger. • * * »</p> <p>Defendant was proceeding north with his vehicle and upon one blast of the traffic officer’s whistle did not stop but turned into a cross street and proceeded east, contending that the signal was to stop north and south traffic and not to prohibit a driver going north from joining in the east and west traffic. Meld, that upon one blast of the traffic officer’s whistle north and south traffic must stop at foot crossings of the street and not proceed until the officer has signaled that such traffic may continue. One' desiring to turn into cross street should convey his intention to do so to officer before proceeding.</p>

<p>Construction of will.</p>

<p>Wills—construction of — legacies—“relatives” limited to those who would take under Statute of Distributions — provisions for widow inconsistent with her taking dower — election.</p> <p>A testator survived by his widow and two brothers and three sisters devised and bequeathed sixty per cent of all his estate, real and personal, to his wife and the balance equally to his “ relatives ” and in addition the wife was given all bonds and jewelry. Held, that “ relatives ” should be construed to embrace those only who would take under the Statute of Distributions in case of intestacy.</p> <p>The provisions of the will for the widow are inconsistent with her taking dower and she is put to her election.</p>

<p>Transfer tax — non-resident — law of domicile governs succession to personal property — when bonds and notes of New York corporation not taxable under section 220(2) of the Tax Law, as amended.</p> <p>The right of succession to personal property is governed by the law of the domicile of the owner at the time of his death.</p> <p>Where decedent, who died intestate a resident of the state of California, at the time of his death there was the owner of and had in his possession certain bonds and promissory notes of a New York corporation whose principal asset was real property in this state, upon which said bonds and notes were not in any way a lien, and it also appeared that a tax under the Inheritance Tax Law of California had been assessed and paid upon said bonds and notes, which have not since the death of decedent come into the state of New York, they are not subject to a transfer tax here under section 220(2) of the Tax Law, as amended.</p>

<p>Action for injunction to restrain waste.</p>

<p>Habeas corpus.</p>

<p>Intoxicating liquors — seizure without warrant in private dwelling — when writ of prohibition will not issue to restrain replevin — Code Grim. Pro. § 802-b.</p> <p>Where, without a search warrant, liquors are seized in and taken from the private dwelling of the owner of the liquor, an action in replevin lies, and a motion to restrain the trial of the action pending the disposition of a proceeding in rem under section 802-b of the Code of Criminal Procedure against the liquor so seized, will be denied.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, fourth district, in favor of defendant and dismissing plaintiff’s complaint on the merits.

Appeal by plaintiffs from a judgment of the Municipal Court of the city of Nev> York, borough of Queens, fourth district, dismissing plaintiffs’ complaint. The action was to recover the sum of $721.20, alleged to be the reasonable value of the use and occupation of premises from the 10th day of December, 1920, to the 5th day of May, 1921.

<p>Transfer tax — wills.— construction of — testator’s intention overcomes palpable error in describing fractional share — legacies taxable.</p> <p>Where in a gift of the entire estate of testatrix in equal shares to her five sisters, naming and describing them, the bequest is by palpable error made to read “ one-fourth ” in place of “ one-fifth,” the evident intent of the testatrix must be carried out by the exclusion of “ one-fourth,” and since upon such construction the share of each sister exceeds $500, it is subject to a transfer tax.</p>

<p>Naturalization — service in Coast Guard, subsequent to re-transfer from navy to treasury department, does not comply with act of Congress of July 19, 1919, permitting application without filing declaration of intention.</p> <p>Where it appears that petitioner on September 22, 1921, after completing a term of exactly one year in the service of the United States Coast Guard which was by direction of the president, pursuant to the act of Congress approved June 28, 1915, transferred from the treasury department to the navy department until August 28, 1919, when it was again. placed under the control and direction of the secretary of the treasury and has been ever since, the petitioner does not come within the act of Congress approved July 19, 1919, which provides that any one of foreign birth who served in the military or naval forces of the United States during the World War shall be entitled to apply for citizenship without filing a declaration of intention, etc., and such an application on his behalf will be denied.</p>

<p>Trusts — when parents create a trust with power of revocation to be executed by both, survivor cannot terminate the trust — when increase of corpus from income not an unlawful accumulation under Personal Property Law, § 16 — gift of income to children held to continue during father’s pleasure only—father entitled to income since date he directed payment to him.</p> <p>A trust agreement executed by the parents of the plaintiff, who at the time were living apart, provided that the survivor should receive the entire income of the trust fund, a considerable part of which belonged to the mother, and at his or her death the principal and all accumulations of income should be paid over in equal shares to their children, other than plaintiff, who for himself and his heirs waived all right of participation in the trust fund. The trust agreement contained the following : “ It is expressly agreed and made part of this instrument that the terms and conditions hereof and of the trusts and estates herein created or any of them may from time to time be revoked, modified or changed in any particular, by instrument in writing, duly signed and acknowledged by the parties of the first part and delivered to the party of the second part or his successors in trust.” In an action for the settlement of the accounts of the trustees and for instructions as to his future administration of the trust, held, that the father had no right to revoke the trust agreement after the decease of his wife, as to hold otherwise would defeat one of the most important purposes of the trust, to wit, the creation of remainders in the children of the trustors, and would be subversive of the intent expressed in the revocation clause of the trust agreement.</p> <p>Under the trust agreement the mother during her lifetime was entitled to and did receive the income of the trust fund up to $5,000 a year and the balance belonged to the father, who, as satisfactorily shown by the evidence, orally instructed plaintiff to add his share of the income to the corpus of the trust, his express desire being to increase the fund for the benefit of his children. Plaintiff acting upon such instructions paid over to the other defendants their designated shares of the income for a long period until May 21, 1920, and his course was approved by his father from time to time. Held, that such disposition of the income was proper; that the father had a right to increase the corpus of the trust and whether it was done from his share of income or from other sources was immaterial, and his contention that such direction would be void and in violation of section 16 of the Personal Property Law, which refers solely to direction for accumulation of income contained in an instrument in writing, was untenable, as that statute did not apply here.</p> <p>Where the evidence showed that one of plaintiff’s sisters by the express direction of her father was excluded from participation in the income during a certain period, the plaintiff trustee will not be personally surcharged with the amount she claims as her share of the income.</p> <p>It clearly appearing that the father’s gift of the income to his children was a voluntary act, to continue only during his pleasure, the whole income from the trust fund since the date upon which he directed it to be paid to him belongs to him, except the amount directed to be paid to one of the daughters.</p>

<p>Application for summary judgment.</p>

<p>Landlord and tenant — cities of the first class — ‘ ‘ Housing Laws ’ ’— summary proceedings — when tenant may remain upon payment of reasonable rent — tenant cannot be dispossessed from apartment, a portion of which is used for business, unless the business becomes objectionable or premises are not used for dwelling purposes — Laws of 1920, chap. 942.</p> <p>The recent “ Housing Laws ” created a new form of tenancy under which a tenant, without the permission of the landlord, is entitled to remain in possession of the premises occupied by him on October 1, 1920, upon payment of a reasonable rent, and neither expressly nor by necessary implication does the statute (Laws of 1920, chap. 942) permit the court to regulate or fix the extent of the occupancy or possession to which the tenant on that date was entitled, or to sever a room used for business purposes under the original hiring from the remainder of the premises occupied for dwelling purposes.</p> <p>A tenant, therefore, who for many years prior to October 1, 1920, occupied only a part of the leased premises for dwelling purposes, may not be dispossessed under chapter 942 of the Laws of 1920, unless the business conducted by him in the other part of the premises becomes objectionable or the case, by proof, is brought within one or more of the exceptions provided for in said statute.</p>

<p>Appeal by defendants from an order denying their motion to open a default and to vacate judgments entered thereon.</p>

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

Appear by plaintiff from order of City Court of the city of New York setting aside a verdict in favor of plaintiff and ordering a new trial.

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

<p>Boundaries — ejectment — disputes as to location of boundary line — conveyances according to map — generally excess should be divided or deficiency borne by all lots proportionately, but where map of plot shows lots of regular size and a few of irregular size the lots of irregular size are deemed remnants and bear the shortage.</p> <p>Where land is conveyed by reference to a plan or map, and there is more or less in the entire tract which has been divided than the map shows, no grantee is entitled to any preference over the others and the excess should be divided among or the deficiency borne by all of the lots in proportion to their area.</p> <p>Where, however, a map shows a plotting of a considerable tract and the creation of lots of regular width and depth, if a few of them are of irregular dimensions they are deemed to be the remnant of what remained of the entire tract after plotting the regular lots, and if there is a shortage in the entire frontage, the irregular sized lots must bear it, this, upon the assumption that it was the intention of the owner to get as many regular sized lots as possible and that whatever remained of the frontage was to go into the irregular shaped plot, and hence if he had more or less than the map showed, the difference in the frontage would affect only the irregular lots.</p> <p>A map of a tract of land filed by the owner in the office of the county clerk showing 500 lots or more disclosed that it was his intention to create lots regular in shape with a width of 25 feet and a depth of 100 feet. According to the map the frontage of one of the blocks bounded north by a turnpike, east by an avenue, south by a street and west by the land of another owner, and in which lies the property of plaintiff and defend- . ant, is 211 feet 3 inches along the avenue, but as matter of fact the block' measures only 206 feet 2 1/8 inches. The owner laid out four lots fronting on the avenue and then, in the belief that there remained 111 feet and 3 inches, he made that the depth of the lot laid out as fronting on the turnpike. All deeds of the property in question, including those from the common owner, referred to the map, and it clearly appeared that neither the plaintiffs nor their predecessor obtained title to a plot that extended 111 feet and 3 inches along the avenue. Held, in ejectment, a dispute having arisen as to the location of the boundary line between plaintiffs’ and defendants’ properties, that plaintiffs did not own 111 feet and 3 inches on the avenue but only 106 feet 21/8 inches, and that defendants were entitled to judgment, with costs.</p>

<p>Taxation — certiorari — property of fraternal order — statutes exempting property construed against owners — lodge building devoted to many and different purposes not exempt—■ by-laws held to permit use of surplus for purposes not contemplated by statute — Benevolent Orders Law, § 7 — Tax Law, § 4(7).</p> <p>Under the rule that statutes exempting property from general taxation must be strictly construed against the property owners, and that exemption may not be presumed unless plainly expressed, it is clear that section 7 of the Benevolent Orders Law, under which relator was incorporated, and section 4(7) of the Tax Law, under which relator claims exemption of its real property from taxation, contemplate a building to be used for lodge purposes with an occasional use for other fraternal purposes, and not a building as here shown devoted to and used for many and different purposes.</p> <p>While section 6 of the relator’s by-laws directs the use of all surplus moneys for certain benevolent purposes which are within the contemplation of the statute, it also specifies “such other benevolent or charitable purposes as the board may direct,” and so permits the board to direct the use of the surplus for purposes not contemplated by the. statute, and for all these reasons the writ of certiorari to review the assessment herein will be dismissed.</p>

<p>Municipal corporations — city of New York — injunction — commissioner of licenses has power to revoke theatre license.</p> <p>The commissioner of licenses of the city of New York has legal power to revoke a theatre license, and a motion for an injunction pendente lite in an action to restrain the exercise of such power will be denied.</p>

<p>Corporations — when stockholders entitled to an order of discovery and inspection of the books and documents of corporations —referee appointed to superintend discovery and inspection — Civ. Pr. Act, § 1569 — Buies of Civil Practice, rule 142. ■ Under the Civil Practice Act and the Rules of Civil Practice an order of discovery and inspection of .the books and documents of a defendant corporation may be granted provided they relate to the merits of the action.</p> <p>Where in several actions brought by stockholders for an accounting .of the receipts, assets and property of the defendant corporations based upon allegations of mismanagement, waste and misappropriation of their property, the court, upon motion for an inspection of all the books and papers of the corporations, is unable to determine when the summonses were served or whether service thereof was made prior to October 1, 1921, on all persons to be served, the court under section 1569 of the Civil Practice Act and in the light of the present Rules of Civil Practice, may, in the interests of justice, apply any remedial provision of said statute not inconsistent with proceedings theretofore taken in said actions.</p> <p>Where from the complaint it was obvious that a discovery and inspection of the stock books, minute books and books of account of the defendant corporation would disclose matters relating to the merits of the actions, and that an order directing the inspection of all other books, papers, registers, certificates and records of the corporations, except a so-called creditors’ agreement, would be too sweeping in its scope and was not justified without more definite reference to the particular books or papers and of their relation to the merits of the actions, an order will be granted permitting a discovery and inspection of the creditors’ agreement and of the stock books and minute books of the corporations, and also of their books of account in so far as they relate to the specific allegations of misconduct, waste and misappropriation, set forth in the complaint.</p> <p>In accordance with rule 142 of the Rules of Civil Practice and to the end that the business of the corporations may not be unduly interfered with, the order will provide for the appointment of a referee to direct and superintend the discovery and inspection, who shall file his certificate entitled in each of the actions, in the county clerk’s office, certifying to the compliance or noncompliance with the terms of said orders, which shall set forth the specific matters alleged in the complaint, concerning which discovery and inspection is directed to be had.</p>

<p>Sales — Statute of Frauds — buyer not required at time of sale to accept goods or to receive any part thereof — defendant’s statement that he had bought a certain boatload of potatoes constitutes an acceptance — place of delivery — purchaser assuming dominion over goods — liability of defendant for purchase price confirmed by letter deferring payment — motion for new trial denied'—Personal Property Law, §§ 85(3), 124(3).</p> <p>The Personal Property Law, section 85 (Laws of 1909, chap. 45, as amended by Laws of 1911, chap. 571), does not require that at the time of a sale of goods the buyer shall accept or receive any part thereof.</p> <p>In an action by a cultivator of seed potatoes to recover $11,124.86, the purchase price of a cargo of seed potatoes sold to defendant, a New York potato dealer, under an oral contract upon which no earnest money was paid, proof that defendant stated to two or three other potato growers, that he had bought this particular boatload from plaintiff, constitutes an acceptance thereof by defendant under section 85(3) of the Personal Property Law which provides that, “ There is an acceptance of goods within the meaning of this section when the buyer, either before or after the delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods.”</p> <p>The plaintiff on the same day that he notified defendant that the potatoes were in the canal boat Malinda Reilly notified the captain that he had sold the potatoes to the defendant, having previously informed the captain of the sale, and advised him to call on defendant in a day or two to find out when he would start to unload the boat. After the captain over the telephone had told defendant plaintiff’s name and- the name of the boat, defendant told him he would start the boat next Monday or a week from Monday and the captain said that would be all right. In the same conversation the defendant admitted that the potatoes had been sold to him by the plaintiff. Held, that under section 124 of the Personal Property Law the canal boat was the place of delivery and the captain having pursuant to subdivision 3 of said section acknowledged to defendant that he held the potatoes on defendant’s behalf, the ■ defendant by his statement to the captain as to when he would begin taking the potatoes off the boat, assumed dominion over them and was liable for the purchase price.</p> <p>A letter written by defendant to plaintiff after telling the captain when he would start unloading the boat, in which letter he in no wise repudiated the contract, except that he deferred payment on account until he started to unload the boat, evidenced his assent to become the owner of the potatoes.</p> <p>The answer alleged that the agreement sued on was for the sale of goods in excess of fifty dollars; that no agreement in writing was ever made and subscribed by defendant; that he did not at the time of the alleged sale accept or receive any part of said goods or at any time pay any part of the purchase price. Held, that assuming that the defense of the Statute of Frauds was properly pleaded, a motion for a new Mai after a verdict in favor of plaintiff will be denied.</p>

<p>Brokers — real estate broker must disclose purchaser — commissions.</p> <p>A broker to sell real estate who refuses to reveal to his employer the identity of the proposed purchaser is not entitled to recover commissions.</p>

<p>Claims against state — right of state to improve navigability of its waters paramount — state not liable to riparian owners in absence of negligence — Ellicott creek—claim by owner of bed of stream for consequential damages to dock and warehouse dismissed — Laws of 1809, chap. 45; Laws of 1813, chap. 47; Laws of 1913, chap. 624.</p> <p>The rights of riparian owners are subject to the paramount right of the state to improve the navigability of its waters, and in the absence of negligence, the state is not liable for consequential damages caused by the lawful exercise of such paramount right.</p> <p>During the years 1919 and 1920 claimant was the owner of lands running “ to the Ellicott Creek, thence westerly along said Creek” and including all the rights of his grantors in and to “the Ellicott Creek adjoining said premises and to the center thereof.” On the water-front of this land had been erected a dock and warehouse, which was partially supported by piling driven into the bed of the river. By statute (Laws of 1809, chap. 45; Laws of 1813, chap. 47) the state indicated its control of the waters of Ellicott creek specifically reserving the navigable rights of the public therein and claimant took title with notice thereof. In April, 1919, in pursuance of and in conformity with chapter 624 of the Laws of 1913 work was being performed by a duly authorized contractor, under the supervision of state officers, immediately in front of claimant’s premises. The entire work was completed August 14, 1919, and as a result thereof, on April 16, 1920, a portion of the bed of the creek in front of claimant’s premises gave way talcing with it a portion of his warehouse. Upon the hearing of a claim for damages there was no proof to sustain the contention that claimant’s damages were caused by the negligence of the state. Held, that as there had been no invasion of claimant’s property upon which direct damages could be predicated, even though claimant was the owner of the bed of the stream at the point in question, the damage suffered by claimant was merely a consequential injury to his right of wharfage, which by implication of law as well as the reservation specifically expressed in the statutes of 1809 and 1813, he held subject to the paramount rights of the public, and the claim for consequential damages will be dismissed.</p>

<p>Wills — construction of — upon probate surrogate may determine whether after-born children, unprovided for, are entitled to share — when after-born children deemed to be mentioned in will within meaning of section 26 of Decedent Estate Law.</p> <p>The surrogate upon a proceeding for the probate of a will has jurisdiction to construe the instrument and adjudicate as to whether after-born children of the testator, unprovided for therein or by any settlement, are entitled to a distributive share of his estate pursuant to section 26 of the Decedent Estate Law.</p> <p>After the creation of a trust for the benefit of certain named persons and of testator’s wife, his executrix, who if after-born children were cut off, was the sole legatee, the will provides : “ In the event of my leaving legitimate issue, I annul this entire will and give, bequeath and devise to my wife my entire estate whether the same be real, personal or mixed property, to herself, her heirs, executors and assigns, in fee and absolutely free from any trust or restrictions.” Held, that said children were mentioned in the will within the meaning of section 26 of the Decedent Estate Law and were not entitled to succeed to any portion of testator’s property, pursuant to such statute.</p>

<p>Wills — construction of — testator’s intention must govern — when legatee entitled to income up to date of organization of cor- . poration provided for in will — attempted gift to corporation of income which accrued prior to its organization illegal and void.</p> <p>Where the meaning of a testator is apparent the plain import of the language of his will may not be departed from though it result in rendering the instrument invalid.</p> <p>It is the duty of the court in the interpretation of a will to ascertain from its language, properly interpreted, what the testator actually intended and then to determine whether intended provisions are valid.</p> <p>Testator, who died April 25, 1919, devised and bequeathed his residuary estate to his executors in trust, with instructions to organize, as soon after his death as practicable, and within the lifetime of his nephew and of a partner of testator, a corporation to be known as the “ Juilliard Musical Foundation ” and to transfer and pay over the entire capital of the trust fund to said corporation when organized, for the uses and purposes provided for in its charter. The will contained a further direction that until said corporation was organized, the executors should pay all income actually received from the trust fund to testator’s nephew, but that upon such organization being effected, all distribution of income to him should cease, and that there should be no apportionment to him of income partially or wholly earned, but not yet due and payable, at the organization of the “Juilliard Musical Foundation,” and in the event that the corporation was not organized or for any other reason the said testamentary provisions should be ineffectual, the entire trust fund and estate was devised and bequeathed to the “American Museum of Natural History ” and to “ St. John’s Guild in the City of New York” in equal shares. The will gave testator’s partners the right to purchase his interest in the firm, and in certain mill stocks owned by him, “upon the inventory value ” and " on an inventory basis ”, respectively. The executors and trustees and the surviving partners as of the day of the testator’s death consummated a sale of testator’s interests in the partnership and in the mill stocks. Interest bearing promissory notes of the surviving partners were delivered to and accepted by the executors' and trustees in accordance with the direction of the will, except as to interest dates. The “ Juilliard Musical Foundation ” was incorporated by the legislature March 30, 1920, and a meeting for the purpose of effecting the organization of said “ Foundation ” was held April 16, 1920. The notes were dated April 25, 1919, and delivered November 23, 1920. Upon the delivery of the notes the surviving partners also gave a cheek in payment of any and all interest due from them on account of the notes up to and including October 25, 1920, amounting to $965,471.60. Upon the judicial settlement of the accounts of the executors and trustees and for a construction of the will, the substitutionary legatees asserted claims to the amount' of said check, together with certain other income from corporate or governmental securities, which accrued prior to the organization of the “Juilliard Musical Foundation.” Held, that the intent of the testator was to give to his nephew all income that was due and payable up to the date of the organization of the “ Foundation ” whether actually reduced to possession or not, and that the remainder of said income should go to the “Foundation.”</p> <p>The attempted gift to the corporation of income which accrued prior to its organization constituted a direction for an illegal accumulation of income and was void.</p> <p>The nephew was entitled to the income on the notes and all other income that was due and payable up to the date of the meeting held for the purpose of effecting the organization of the corporation, and the testator having failed to give and bequeath the balance of said income it passed to his next of kin under the Statute of Distributions, but before a decree can be granted herein the proceeding must be amended so as to bring in such persons.</p> <p>The fact that the amount received on the sale of testator’s interest in the firm and in the mill stocks was less than the inventory value as stated in the transfer tax proceeding conducted by his executors and trustees, does not alter the fact that the price so paid was the agreed inventory value and a compliance with the terms of the will.</p>

<p>Guardian and ward—one of full age by law of her domicile, though a minor by the law of New York, is entitled to receive her property here.</p> <p>The law of New York that the term of office of a guardian expires when the ward attains the age of twenty-one years only affects a ward domiciled in New York state.</p> <p>A resident of and of full age — eighteen years — in the state of Illinois is entitled to a decree revoking letters of her guardianship in the state of New York, under the laws of which she is a minor, and requiring" the guardian to account for and pay over to' her forthwith her property in this state.</p>

<p>Surrogates’ Courts — practice — filing copy of lost instrument—■ appointment of administrator with the will annexed denied,' — successor trustee appointed.</p> <p>All three executors under a will which created specific trusts died without filing an account of their proceedings. Two of the successor trustees being unable to agree upon the appointment of a third trustee, as authorized by the will, the beneficiaries of the trust filed a petition for the appointment of a third successor trustee as well as for the appointment of an administrator with the will annexed. Held, that the answer of one of the successor trustees, who asked leave to file mime pro tunc ■ a copy of a writing signed by one of the deceased trustees, could be used only as an objection to the granting of the letters asked for and not as a basis for the taking of proof and decision- thereon, with relation to the granting of letters to a successor executor.</p> <p>Application for appointment of administrator with the will annexed denied, and a third successor trustee appointed.</p>

<p>Motion to vacate notice.</p>

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

Appeal by defendant from a judgment of the Municipal Court of the city of Few York, borough of Manhattan, fifth district, in favor of the plaintiff, also from order of same court denying defendant’s motion for a bill of particulars.

Appeal by defendant from an order of the City Court of the city of New York, consolidating a certain action brought by the defendant herein against the plaintiffs in said action with the above entitled action, and ordering that said action by defendant against the plaintiffs be stricken from the commercial calendar of said court.

Appear by plaintiff from part of an order of the City Court of the city of New York granting defendants’ motion for a bill of particulars.

<p>Municipal Court of the city of New York — calendar practice — failure to give notice of order transferring cause to day calendar as required by rule 33 of said court — motion to vacate voidable judgment under section 6(7) of the Municipal Court Code — third party order in supplementary proceedings based on said judgment reversed — Municipal Court Code, § 129(2) does not apply.</p> <p>After a case in the Municipal Court of the city of New York had been placed on the “ reserved generally ” calendar, a motion by plaintiff to restore it to the trial calendar was granted by an indorsement of the justice on the motion papers, but no formal order was entered and no notice of the so-called order was served on defendant’s attorney. Thereafter, without defendant’s knowledge, judgment was entered against him upon an inquest, and more than a year later a transcript of said judgment was filed in the office of the county clerk. A motion by defendant to set aside and vacate the judgment as void was denied, on the ground that, under section 129 (2) of the Municipal Court Code, it was made too late. After a motion by defendant for a stay had been denied for want of power, plaintiff obtained a third party order for the examination in supplementary proceedings of a bank. Upon reversing an order granting defendant’s motion, made on an order to show cause why the third party order should not be vacated, held, that the case was improperly on the calendar of the Municipal Court.</p> <p>Defendant not having been served with notice of the entry of the order or direction of the justice transferring the cause from the “ reserved generally ” calendar to the “ day calendar ” as required by rule 33 of the Municipal Court, the court should not have permitted the inquest or entered judgment as upon a default.</p> <p>The failure of plaintiff to submit proof of compliance with said rule 33 made the judgment entered voidable, and defendant’s motion to vacate it should have been granted under section 6(7) of the Municipal Court Code.</p> <p>Section 129(2) of the Municipal Court Code, which relates only to the opening of defaults, did not apply/ and the court below has ample power to grant a reargument of the motion to vacate the judgment or defendant, upon new papers showing what has transpired since the entry of said judgment, may renew the motion to vacate it.</p>

Action to recover damages for personal injuries. Motion for dismissal of complaint on ground that court has no jurisdiction of subject matter.

<p>Suit to determine ownership of savings hank deposit claimed by various defendants.</p>

<p>Trusts — deed containing revocation clause — directions as to payment of income, principal and accumulated dividends, etc.— colleges to take in event of no survivor capable of taking — subject matter of trust was in New York when settlor, who died a resident of California, executed deed in Mexico — no suspension of absolute ownership beyond two lives in being—contingent remainders — evidence — depositions of executor of settlor and another interested in event of action incompetent under Civil Practice Act, § 347 — burden of proof as to change of domicile of settlor from United States to Mexico.</p> <p>A deed of trust containing a revocation clause provided that all the dividends, interest and income collected by the trustee should be paid to the settlor of the trust, so long as he should live, and thereafter to a nephew during his life and upon his death to his wife for life, with direction that upon the death of both the nephew and his wife the trustee should pay one-half of the principal and unpaid accumulated dividends, interest and income, to Harvard College absolutely, and one-fourth to another college absolutely. The remaining one-fourth in equal shares was to be paid to the niece and two nephews of the settlor, or to such of them as should survive him, with proviso that if any of them predeceased him leaving issue the share of any deceased nephew or of the niece was to be paid to their surviving issue. If there were no survivor capable of taking the last quarter of the trust property, two-thirds thereof was to go to Harvard College and the remainder to the other college. The settlor, shortly before leaving Mexico, where he had resided for about four years, to take residence in California where he died and where his will was admitted to probate, duly acknowledged the execution of the trust agreement before the United States consul in the city of Mexico, and the trustee, in the city of New York, to whom the instrument had been mailed by the settlor, executed the same in the usual New York form. The subject matter of the trust was then in the city of New York, and the beneficiaries thereunder within the United States. .In an action for the judicial settlement of the accounts of the successor trustee and for a determination as to the validity of the trust agreement, and whether the beneficiaries were entitled to take their respective shares therein mentioned, the executor of the settlor asked for a decree giving to him in his representative capacity the corpus of the trust fund for distribution under the will of his testator, upon the grounds (1) that no trust was created by the alleged trust agreement because the settlor did not at any time divest himself of the legal title to the subject matter of the trust; (2) that under the Mexican law, which it was claimed was controlling, the purported trust agreement was invalid for any purpose; (3) assuming that the settlor did divest himself of title, the attempted trust was invalid under the law of New York, and (4) that in any event the one-fourth contingent remainder to niece and nephews or their issue, with gift over to the colleges, was also invalid under the laws of New York. Held, that because of the reserved power of revocation the trust deed did not suspend the absolute ownership of the "property, measured by the lives of the settlor and the nephew and his wife.</p> <p>The gifts over in favor of the colleges of one-half and one-quarter respectively of the trust property were contingent and not vested, but both were valid, and will vest after the expiration of the only two measuring lives.</p> <p>The remaining one-quarter of the trust fund upon the death of the life beneficiaries was also contingent, but after the termination of the two measuring lives will vest absolutely in one or more of the persons mentioned, if living, or in their surviving issue, and failing any such, in the two colleges, and the only uncertainty is as to the persons in whom said quarter of the trust fund will vest after the termination of the limiting life estate.</p> <p>Where duly taken depositions of the executor and of another witness also interested in the event of the action within the meaning of section 347 of the Civil Practice Act, were offered in evidence in support of a claim that the settlor of the trust had changed his domicile from the United States to Mexico, an objection to their reception as incompetent, on the ground that it was sought to prove a Mexican domicile by the settlor’s own statement to said witnesses, will be sustained. The depositions having been excluded there was not sufficient other evidence to sustain the claim of a change of domicile.</p>

<p>Pleading—action on promissory note — denial of knowledge or information sufficient to form belief as to assignment to plaintiff good under Civil Practice Act, § 261 — affirmative defense that defendant doing business in New York without certificate required by General Corporation Law, § 15 — court no power to strike out answer and grant summary judgment — Rules of Civil Practice, 105, 113.</p> <p>Rule 113 of the Rules of Civil Practice was intended to prevent a defendant in commercial cases from interposing an answer which would unnecessarily delay the entry of a judgment to which the plaintiff was entitled.</p> <p>In certain cases the defendant, under said rule, may be compelled to state his version of the matter in litigation, but where he shows an absence of knowledge or information in regard to any material allegation of the complaint he cannot be compelled to accept the plaintiff’s version, and in such circumstances the court cannot strike out the answer.</p> <p>In an action upon a promissory note, the answer, besides a denial that the note was made and delivered in the city of Chicago, as alleged in the complaint, denied any knowledge or information sufficient to form a belief as to the allegations of the complaint concerning the assignment of the note to plaintiff. The answer also set up as an affirmative defense that the note was made and delivered in the city of New York; that the payee is doing business there and has not obtained any certificate of authority as required by section 15 of the General Corporation Law. The plaintiff upon a motion for summary judgment pursuant to rule 113 of the Rules of Civil Practice and for such other and further relief as the court might deem just, presented affidavits showing that the note was assigned to him by written instrument and further, that the note was sent to the office of the payee in Chicago, inclosed in a letter from the defendant requesting the payee to accept the note in renewal of a note previously given, and that the payee thereupon wrote to defendant that it would accept the note. While the defendant presented no proof in contravention of the allegations of the moving papers, it did appear that on the examination before trial of one of defendant’s officers, he admitted that according to his best recollection the note was made and delivered in the manner claimed by plaintiff. Held, that upon the undisputed facts the note was made and delivered in the city of Chicago, but there being no claim that defendant has any knowledge or information other than that derived from the allegations of the complaint and the moving affidavits, as to the assignment of the note to plaintiff, the defendant in the circumstances was permitted by section 261 of the Civil Practice Act to deny knowledge or information sufficient to form a belief as to these allegations, and thereby raise an issue, and as matter of law was entitled to defend; the court, therefore, was without power to strike out the answer and grant a summary judgment.</p> <p>The motion not having been made within twenty days after the service of the answer, as required by rule 105 of the Buies of Civil Practice, the question whether under any other rule the court could strike out the affirmative defense alone may not be considered.</p>

<p>Marriage — annulment for fraud — broken promise to have Jewish ceremonial marriage.</p> <p>Where a husband absolutely refuses to have a Jewish ceremonial marriage performed in fulfillment of his promise made to his wife before the civil marriage, and the referee to hear and determine the issues in an action for the annulment of the marriage on the ground of fraud finds that because of such refusal there has been no cohabitation between the parties, the report of the referee in favor of plaintiff will be confirmed.</p>

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

<p>Courts — decision should be in harmony with corrective legislation— agreement adopting week work system in place of piece work and for reduction in hours of labor — employers’ association adopted resolution in effect to break agreement — labor union of employees granted an injunction pendente lite — no adequate remedy at law.</p> <p>The progressive sentiment of advanced civilization which-has compelled legislative action to correct and improve conditions which a proper regard for humanity would no longer tolerate, cannot be ignored by the courts, and their decisions should be in harmony with and not in defiance of that modern conception.</p> <p>After a contract, to continue until June 1, 1922, made between the defendant, an employers’ association, and a labor union of garment workers, which provided for the week work system in the place and stead of the so-called piece work system formerly prevailing in the garment industry, and for a reduction in the hours of labor from forty-eight to forty-four hours per week, had gone into effect and the workers were operating thereunder, the defendant broke the contract by the adoption of a resolution which in part stated: “ It has become necessary to substitute in the industry the piecework system for the week-work system, to establish an increase of the number of working hours in the week and to fix a reduction of the wages of the workers in those branches of the industry where, by the nature of the services rendered, it is required that they be retained on the week-work system;” and further:</p> <p>“ That in order to bring into full force and effect the above changes in the industrial standards of the industry there be promulgated an order, binding upon every member of this association, that beginning Monday, November 14, 1921, each and eveiy member will operate his factory on the piece-work .system and at the scale of wages and for the working week established by the executive committee.”</p> <p>This resolution went into effect on October 25, 1921, and ever since has been observed and acted upon by the members of the defendant association. The refusal of plaintiff to accede to the new system of work set up by the employers, as they claimed, in contravention of the collective agreement resulted in what was commonly known as the “ garment strike.” Held, that as under the by-laws of the defendant association its members were bound to and did carry out its directions to repudiate its legal obligations, such act constituted a conspiracy and a violation of plaintiff’s legal rights.</p> <p>It appearing that there are over forty thousand workers whose rights are involved and over three hundred members of the defendant association and that the trial of an action to enjoin the violation of the contract or the doing of any act in furtherance of the conspiracy can hardly be had within the lifetime of the contract, the plaintiffs will be granted an injunction pendente lite, they having no adequate remedy at law.</p>

<p>Wills — bequest of part of residuary estate — direction as to payment of rents, issues and profits to widow and to son who predeceased mother leaving issue — conveyance and transfer - of one-half of trust estate to son on arriving at twenty-one years of age — M death of my said son ’ ’ refers to death either before or after mother — children of deceased son entitled to whole corpus of trust estate in equal shares — conveyance and transfer by trustee decreed.</p> <p>Testator devised and bequeathed to a trust company one-third of his residuary estate in trust, with the following directions : To pay the rents, issues and profits thereof to his wife during her life, and upon her death to his son until he attains his majority, and thereafter during his life to pay him one-half of said rents, issues and profits; upon his arriving at the age of twenty-one years to convey, assign and deliver to him one-half of the trust estate, and “upon the death of my said son ” to convey, assign and deliver all of the estate held in trust, be it the whole or one-half part thereof, to his lawful issue share and share alike or in default of such issue to his next of kin. The testator’s widow survived him and though the son survived his father he predeceased his mother, leaving children him surviving. Held, that the words “upon the death of my said son” must be construed as referring to his death' either before or after- that- of his mother. ■</p> <p>The children of the deceased son are therefore entitled to the whole corpus of the trust estate in equal shares and the trustee will be directed under the will to make the proper conveyance and transfer. •</p> <p>That the son having reached his majority would immediately upon the death of his mother, the life tenant, have been entitled to one-half of the trust estate absolutely had he survived her, does not change the situation.</p>

<p>Proceeding for probate of will.</p>

<p>County Court — jurisdiction — when judgment in excess of $2,000 may be entered.</p> <p>Where the amount demanded by a complaint in a County Court is within the jurisdictional limitation, the jurisdiction io render judgment cannot be defeated by the fact that interest became due during the pendency of the action.</p> <p>At the time a ease in County Court was moved for trial, about ten years after the commencement of the action, and six years after the service of the answer, the sum demanded by the complaint, to wit, $1,959.20, amounted to $2,595.10 because of accrued interest. Held, upon a motion for judgment, the defendant not appearing, that plaintiff was entitled to judgment for the full amount demanded by the complaint, with interest to date.</p>

<p>Action to recover possession of a chattel and to foreclose lien thereon. Submitted to court on agreed state of facts.</p>

<p>Motion by plaintiff for order striking out answer and for summary judgment.</p>

<p>Damages — permanent appropriation of land for Barge canal—■ canal constructed on both sides of the road on which claimant’s hotel property is situated — no invasion of property-—-consequential damage is damnum absque injuria — Laivs of 1918, chap. 612, not applicable — an award made for appropriation of highway in front of claimant’s premises — filing of notice of intention unnecessary—Code Civ. Pro. § 264.</p>

<p>Claim for damages caused by appropriation of land.</p>

<p>Appeal from judgment of conviction.</p>

<p>Action by infant for return of money paid on account of purchase of automobile.</p>

<p>Contract — sale of automobile — rescinded because of mistaken credit on purchase price — no action lies to recover balance alleged to be due.</p>

<p>Proceedings upon objections to trustees’ accounts.</p>

<p>Executors and administrators — action on contract — submission of claim unnecessary —■ Decedent Estate Law, § § 116, 117.</p>

<p>Criminal law — assault in third degree — sentence upon conviction in city of New York may he fifteen months imprisonment■— Parole Commission Act, as amended in 1916 — discharge on habeas corpus, on ground that under Penal Law, section 245, maximum sentence is one year, denied.</p>

<p>Transfer tax — will of decedent admitted to probate in Texas where estate• was taxed — declarations of decedent and her supporting acts and concluct sustain finding that she w.as a nonresident of the state of New York at her death.</p>

<p>Wills — life estate to widow not stated, to be in lieu of dower-— election not required — Beal Prop. Law, § 200—when only entitled to income.</p>

<p>Application to fix bond of testamentary trustee.</p>

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

<p>Appeal by executor from order of transfer tax appraiser.</p>

<p>Claim for damages for breach of contract.</p>