Volume 118 — New York Miscellaneous Reports

<p>Suit in equity for foreclosure of corporate mortgage.</p>

<p>Certiorari — real estate —■ assessment for taxation — rentals should be considered in fixing values.</p> <p>Before the court is justified in disturbing an assessment fixed by a public official, the relator on certiorari to review must overcome the presumption that the assessment is correct.</p> <p>The rentals of apartment houses in the city of New York should be considered in determining their value, and where on certiorari to review the assessments on seven of such apartments the relator’s experts declare that in fixing valuation they had not considered the rentals, and upon all the ■ testimony it does not appear that the assessments are above the fair market value of the properties, the proceeding will be dismissed.</p>

<p>Practice — pleading — right to serve amended complaint — extension of time to answer — effect of extension contained in order to show cause —Civil Practice Act, § 244 — Rules of .Civil Practice, rule 104.</p> <p>An order to show cause why the complaint should not be dismissed, procured under rule 104 of the Rules of Civil Practice within twenty days after the service of the pleading, extended defendant’s time to answer twenty days after the determination of the motion. More than twenty days after the service of the order to show cause but pending the decision of the motion plaintiff, as provided by section 244 of the Civil Practice Act, served an amended complaint as of course, which defendant returned on the ground that more than twenty days had elapsed since the service of the order upon the motion addressed to the original complaint. Held, that as at the time the amended complaint was served the defendant’s time to answer had not expired, the extension under the order to show cause was an absolute one, and a motion by plaintiff to compel defendant to accept service of the amended complaint will be granted.</p> <p>The contention that as the order to show cause took the place of the demurrer, and that as under section 283 of the Civil Practice Act defendant in the event that his objection to the complaint were not sustained would have ten days after the decision of the motion within which to serve an answer, the extension of time to answer incorporated in the order to show cause was merely a conditional one, was untenable.</p>

<p>Motion by plaintiff, in each case, to vacate notice of taking by deposition of testimony before trial and for summary judgment.</p>

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

<p>Wills — life estate to husband — gift of remainder to children and their issue per stirpes and not per capita — one child dying intestate leaving no issue merely reduces the number of beneficiaries.</p> <p>The intention of a testatrix as evidenced by her will must prevail unless it offends public policy or transgresses some positive rule of law.</p> <p>' Testatrix gave all of her estate to her surviving husband with remainder to her four surviving children, and to the issue of any child who might predecease the husband, per stirpes and not per capita. Three of the children died during the life tenancy, two left issue and the third died unmarried, intestate and without issue. Held, that it was the intention of testatrix that upon the termination of the life estate all the remainder should be divided among her children and their issue; the death of one of said children without issue merely reduced the number of beneficiaries.</p>

<p>Actions — immunity based on comity — unrecognized foreign government is “foreign corporation ” within Civil Practice Act, § 7(7), and has no capacity to sue although it is not immune from suit — motion to set aside summons denied — conversion.</p> <p>The immunity of a foreign government from suit here is based upon international comity.</p> <p>The Russian Socialist Federated Soviet of Russia, between which and the United States government there is no international comity, is a “ foreign corporation ” within the meaning of section 7(7) of the Civil Practice Act, and though such foreign government has no capacity to sue in this state it is not immune from suit here.</p> <p>A motion to set aside the service of the summons in an action for conversion brought against said foreign government and for a dismissal of the complaint denied.</p>

<p>Pleadings — counterclaim for annulment of marriage improper in action for separation — dismissal of complaint and counterclaim.</p> <p>A counterclaim for the annulment of a marriage may not be interposed in an action for separation, and though upon the statement of counsel that plaintiff had directed him to abandon the action proof was given of the counterclaim, the court upon its own motion will direct judgment for the dismissal of both the complaint and the counterclaim.</p>

Action brought to recover $1,610, and interest from December 8, 1920, on account of the sale and delivery of certain goods to the defendant in the nature of a salad cooking oil, known as “ Salanut.” The answer does not raise any issue as to the allegations of the complaint, but pleads a counterclaim wherein the defendant seeks to recover from the plaintiff the sum of $3,370.91, on account of contract for the sale of certain Manchurian Soya bean oil claimed to have been made…

Action brought by the plaintiffs to recover judgment requiring the defendant to approve a proposed deed of a portion of a cemetery lot.

<p>Criminal procedure — suspension of sentence in whole or in part — indeterminate sentence of not less than two years, etc.— direction that after one year defendant should be placed on probation — order for return to court imposing sentence — Penal Law, § 2188 — effect of amendments thereto in 1918 and 1920.</p> <p>Under section 2188 of the Penal Law, as amended by chapter 457 of the Laws of 1918, the court has power to suspend the execution of the whole or a part of a sentence, and such power was not taken away by chapter 568 of the Laws of 1920, in effect May 8, 1920, which added to such section a provision “ that the imprisonment directed by the judgment shall not be suspended or interrupted after such imprisonment shall have commenced; ” said amendment fairly construed means that there can be no interruption or suspension of a sentence originally imposed.</p> <p>When an imprisonment is terminated because a part of the sentence imposed is suspended or the prisoner is ordered back before the court to be placed on probation, or for any other purpose, the imprisonment is not “ suspended ” or “ interrupted; ” it is ended.</p> <p>An indeterminate sentence of confinement in a state prison of not less than two years and six months and not more than five years, coupled with a direction that after the prisoner should have served one year he should be returned to the court which imposed the sentence and “ placed upon probation for the balance of said term,” is legal under section 2188 of the Penal Law, as amended in 1918, though the sentence and the commitment thereunder were made after the amendment of 1920 to said section.</p> <p>Where more than one year has expired since the imposition of the sentence, the relator, on writ of habeas corpus to test the legality of his further detention in state prison, will be granted an order remanding him to the court which imposed the sentence for final disposition of his.ease.</p>

<p>Claim on express contract.</p>

<p>Claim against an estate for services.</p>

<p>Argument of demurrer to complaint.</p>

<p>Motions to set aside verdicts and for new trials.</p>

<p>Negotiable Instruments Law, § 42 — certified check — fictitious payee — when transferee under forged indorsement not holder in “ due course ” — proof that check was procured by fraud — reversal of judgment in favor of plaintiff — dismissal of complaint on merits.</p> <p>Where the maker of a check did not know that the payee was fictitious, the transferee under a forged indorsement of the name of the payee made by the one who procured the check to be made is not a holder in due course under section 42 of the Negotiable Instruments Law, and cannot enforce payment.</p> <p>Where in an action against a bank to recover the amount of a check, payment of which was stopped after certification, the defendant conceded that plaintiff is a bona fide holder, but the evidence convincingly establishes that the check was procured by fraud and that the name of the payee and indorser was fictitious as pleaded in the answer, a judgment in favor of plaintiff will be reversed and the complaint dismissed on the merits, with costs.</p>

<p>Appeal by plaintiff from an order entered in the Municipal Court, borough of Manhattan, seventh district, which granted defendant’s motion to open its default and to vacate a judgment for plaintiff of $750 and costs entered on an inquest.</p>

<p>Taxes — national bank stock— “ other moneyed capital ” taxed by state — no discrimination against bank shares — constitutional law — certiorari — local assessments of national bank stock against individual shareholders confirmed — burden of proof — U. S. Rev. Stat. § 6219— Tax Law, §§ 4-a, 24-24-g, 290 and 352.</p> <p>Section 5219 of the Revised Statutes of the United States permits a state to tax national banks, but with the proviso that “ the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state.”</p> <p>Section 24 of the Tax Law of the state provides that “ in assessing the shares of stock of banks or banking associations organized under the authority of this state or the United States the assessment and taxation shall not be at a greater rate than is made or assessed upon other moneyed capital in the hands of individual citizens of this state.”</p> <p>Though under sections 4-a and 352 of the Tax Law local assessors have no right to assess and tax moneyed capital other than bank shares in the hands of individual citizens of the state, it does not follow that such other moneyed capital is not assessed and taxed by the state.</p> <p>Local assessors have no power to fix a tax upon other moneyed capital, but so long as the state taxes it in some other way and the tax so imposed is not discriminatory against national banks by reason of inequality, the relevant provisions of the United States Revised Statutes are not violated.</p> <p>The board of taxes and assessments of the city of New York, under sections 24 to 24-g, both inclusive, of the Tax Law, assessed a tax for the year 1921 upon the shares of stock of the relator, a national bank. The assessments were separately entered in the assessment roll for 1921 against all the shareholders of relator, who owned a total of 30,000 shares, each shareholder being assessed in an amount representing the number of shares held by the shareholder, at a stated valuation. Upon certiorari under section 290 of the Tax Law to review said assessments, the sole claim of relator was that they were illegal and void in toto, and should be canceled, first, because in view of the exemptions provided for in sections 4-a and 352 of the Tax Law of the state the provisions of the statute under which the assessments were made are repugnant to section 5219 of the Revised Statutes of the United States, and, second, because the taxing officer, having exceeded the limitations imposed by section 24 of the Tax Law, acted without jurisdiction. Upon dismissing the proceeding and confirming the assessments, held, that it is apparent from a consideration of the various methods adopted by the state in its scheme of taxation embodied in the Tax Law, that other moneyed capital in the hands of individuals is taxed to about the same extent as bank shares, and there is no discrimination against the latter.</p> <p>The burden of proof that this system of taxation so discriminates against national banks as to place upon them a burden of taxation greater than is imposed upon other moneyed capital, the relator has failed to sustain.</p>

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

<p>Summons — old form — motion to set aside denied — motion to amend granted — rule 105 of Rules of Civil Practice.</p> <p>Where no complaint was served, a motion to set aside and vacate the service of the summons, which was in the old form, will be denied and a cross motion under rule 105 of the Rules of Civil Practice for leave to amend the summons so as to comply with the new form will be granted.</p>

<p>Taxes — exemptions — an apartment house conducted solely for the benefit of unmarried working women exempt — word “ benevolent ” in Tax Law not to be restricted in meaning— Tax Law, § 4(7).</p> <p>The “ Webster Apartments,” a corporation formed to carry out a testamentary provision by which the testator created a trust fund to be used for the erection of an apartment building in the borough of Manhattan, city of New York, with direction that said apartment should be conducted solely for the purpose of “ providing unmarried working women with homes and wholesome food at a small cost to them and in deserving cases without cost to them,” is one organized solely for charitable and benevolent purposes and such of its real property as is held exclusively for such purposes is exempt from taxation under section 4(7) of the Tax Law.</p> <p>The corporation on a claim for such exemption _ need not show that the recipients of its charity are persons in need of assistance and proven objects of charity; to restrict the meaning of the word “ benevolent ” as used in the Tax Law to such a purpose would be contrary to legislative intent and public policy.</p>

<p>Contracts — mother as executrix unable to account to her son for his share of his father’s estate — action by son on his mother's agreement to leave her entire estate to him sustained — pleadings — amendment to conform to proofs.</p> <p>The will of testator who died in 1875 devised and bequeathed the remainder of his estate jointly to his widow and his son with provision that the son should receive the income from one-half of the estate until he became twenty-five years of age, at which time he was to receive one-half of the principal of the estate. In addition to the personal estate, inventoried at $15,112.54, testator left certain real estate which was sold by the widow as sole surviving executrix for $6,000. On the same day in the year 1883 that said executrix conveyed the real estate the grantee conveyed the premises to the second husband of the executrix, the consideration stated in both deeds being $6,000. On the same day the husband gave a mortgage to the executrix for $5,000 which upon a sale of the premises three years later was discharged and canceled of record together with two other mortgages upon the property given by the grantee of said executrix. The son became twenty-five years of age shortly before March, 1892, up to which time he had been paid no part of the principal of the estate nor had the executrix made an accounting. In March, 1892, the surrogate, to whom the facts with reference to said conveyance and mortgage were known, upon petition of the son to compel his mother to account as executrix of his father’s estate, insisted that she make a judicial accounting and pay over to the petitioner his share of the estate. After discussion an agreement was reached that the executrix, who stated that she could not account, would leave all she had to the son, her only child, and with that understanding he executed a release and consent to the entry of a decree discharging her from all liability to him, and such a decree was accordingly entered. The executrix died in 1919 leaving an estate very much less than her son’s share in his father’s estate, the residuum of which she left to her son. Held, that the contract of the mother to leave her entire estate to her son having been proven by that clear and convincing evidence that the law requires and it appearing that all that he had received of the principal of his father’s estate was the sum of $1,900, he was entitled to all of the estate of which his mother died seized and possessed, subject to the payment of her debts and funeral expenses.</p> <p>Where facts alleged, so far as material, are substantially the same as proven upon the trial, the complaint should be regarded as amended to conform to the proofs although the prayer for relief differs from the form of judgment asked.</p>

<p>Parent and child — child born before marriage of parents — annulment of marriage — child held to be legitimate under chapter 631, Laws of 1896.</p> <p>Wills — ineffectual disposition of remainder of estate — intestacy — distribution.</p> <p>A testatrix who gave the remainder of her estate to the grandnieces or grandnephews who survived her two nieces and nephews, died leaving her surviving a nephew, a niece and a daughter of a deceased niece. Said grandniece predeceased the survivor of the nephew and the niece. Held, that testatrix died intestate as to the entire remainder which became vested in her heirs at law and next of kin.</p> <p>Upon the question as to whether said grandniece was one of the heirs at law and next of kin of testatrix who died in 1897, the legitimacy of the grandniece was the real issue. It appeared that she was born on February 5, 1882, the day before her parents were married; that on June 23, 1883, said marriage was annulled for duress by a decree which provided that the marriage “ is wholly null and void from the date of this judgment.” Held, that by the statute (Laws of 1895, chap. 531) the grandniece was legitimatized.</p> <p>The ceremonial marriage of her parents, though in the nature of a voidable one, and the provision of the decree which did not annul the marriage ab initio, were a sufficient answer to the contention that there never was a marriage within the meaning of the statute.</p> <p>The infant son of the grandniece tabes from his mother and not through his mother, as her interest had vested, she having survived the testatrix.</p>

<p>Divorce — condonation — breach of implied condition to treat kindly — interlocutory decree granted.</p> <p>Where in a wife’s action for divorce it satisfactorily appears that upon the resumption by plaintiff of marital duties, after her discovery of defendant’s infidelity, he began a course of cruel and inhuman treatment of her continuing for months and finally culminating in a vicious assault for which he was tried and convicted and sentenced to the penitentiary for one year, she will be awarded an interlocutory decree.</p> <p>A condoned adultery is revived by a repetition of the offense; the cohabitation testified to by plaintiff was upon the implied condition that she should be treated by defendant with conjugal kindness, and his conviction of assault was a breach of such condition.</p>

<p>Negligence — automobile damaged in collision — attachment of car driven by defendant — order cf arrest under Civil Practice Act, § 826, vacated upon defendant giving security to pay any judgment recovered — affidavit to obtain attachment stated a cause of action.</p> <p>In a Supreme Court action, in which only the summons had been served, to recover damages to plaintiff’s automobile by reason of a collision with a car driven by defendant, the defendant was arrested upon an order of arrest granted under section 826 of the Civil Practice Act upon affidavits setting forth plaintiff’s cause of action. At the same time the car was attached by virtue of a warrant of attachment. Upon motion to vacate the order of arrest, the defendant being out on bail, plaintiff conceded that his remedy by attachment was sufficient to protect him, provided defendant was the owner of the car. Held, that upon defendant giving satisfactory security in a sum not exceeding $500 for the payment of any judgment which the plaintiff might recover, the motion will be granted and defendant’s bail exonerated, otherwise the motion will be denied.</p> <p>The point that the motion to vacate being based upon the original moving papers should have been made returnable before the county judge who signed the order of arrest, out of court, is not well taken.</p> <p>The facts stated in the affidavit of the driver of plaintiff’s car at the time of the accident, upon which both the order of arrest and the warrant of attachment were granted, held sufficient to constitute a cause of action.</p>

<p>Motion for an injunction pendente lite to restrain the erection of a structure in violation of a set-back agreement.</p>

<p>Writ of habeas corpus.</p>

<p>Action for ejectment.</p>

<p>Telegraph companies —■ unrepeated interstate message — rates filed with interstate commerce commission control — act of congress June 18, 1910, chap. 309, § 7 — damages for delay in delivery — limited liability under federal law — statutes of states and decisions of state courts superseded.</p> <p>By act of congress, June 18,1910, chap. 309, § 7 (U. S. Comp. Stat. § 8563) telegraph companies engaged in interstate commerce are brought within the Act to Regulate Commerce and the only rate for an unrepeated message between Providence, R. I., and Buffalo, N. Y., is that fixed by the tariff schedules on file with the interstate commerce commission, and the limitation of liability therein becomes the lawful condition upon which the message was sent.</p> <p>The United States Supreme Court having decided that under section 3 of the Act to Regulate Commerce the liability of a telegraph company for errors in transmissions and delays in delivering an unrepeated interstate telegram is limited to the damages specified in the schedule of tariffs filed with the interstate commerce commission, that a contract cannot be made increasing that liability, and that the failure to make a contract cannot create a liability under the common law, the statutes and decisions of the states are to be deemed superseded and are of no assistance in an attempt to establish another and different liability.</p>

<p>Lien Law, § 184 — priority of garage keeper’s lien.</p> <p>. Under section 184 of the Lien Law a garage keeper has a lien for storage, maintenance, etc., of motor vehicles which is superior to the lien of a chattel mortgage which was given when the statute was in force.</p>

<p>Proceeding to construe a will.</p>

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

<p>Accounting proceeding involving construction of a will</p>

<p>Accounting proceedings with construction of will.</p>

<p>Bail — Court of Special Sessions — Police Court of Albany — undertaking in excess of $200 void — Code Grim. Pro. § 737.</p> <p>The Police Court of the city of Albany is a Court of Special Sessions within the meaning of section 737 of the Code of Criminal Procedure, which provides that bail in said courts shall not exceed §200, and an undertaking of bail in the sum of §500 for the appearance of the defendant for trial in the Police Court of Albany is void.</p>

<p>Action under a lease by tenant to recover cost of alterations.</p>

<p>Motion to dismiss writ of habeas corpus.</p>

<p>Nuisance — attractive nuisance — reservoir built by railroad within'village limits — high board fence inclosure — drowning of boy going on premises to fish — when no recovery allowed for his death.</p> <p>Upon its own land within the corporate limits of the village a railroad company built near the street line a reservoir about thirty-five feet by forty feet with perpendicular walls and with a depth on one side of about ten feet. A closed board fence about six feet high was erected upon the top of and around the reservoir and on the westerly side was a door which locked by a hasp and padlock. This door, which could be plainly seen from the street, was allowed to get out of repair; one of the hinges was off, the hasp and lock broken, and the door swung on one hinge, thus leaving an opening of sufficient size to permit the entry of persons without disturbing the door in its then condition. One day, after several boys had entered the opening with tackle to fish, plaintiff’s intestate, a boy about eight years of age, passed through the open door with fishing tackle and after asking the other boys for some bait which they refused, he went to the deep side of the reservoir. There was evidence tending to show that instead of fishing he was searing the fish with his pole; that in throwing his line back the hook caught in the fence and in pulling it from the fence the line broke and he fell into the reservoir in which there were four or five feet of water, and was drowned. It" also appeared that there was a solid masonry wall twelve feet high on the southwest corner and twenty feet high on the lower southeast corner about the reservoir. In an action to recover damages alleged to have been caused through the negligence of defendant both parties at the close of the case moved for the direction of a verdict. Held, that upon the facts plaintiff was not entitled to recover and defendant’s motion will be granted and judgment entered accordingly.</p>

<p>Motion by defendant for judgment dismissing the complaint.</p>

<p>Negotiable instruments — action on notes — pleadings — rule 113 of the Rules of Civil Practice not generally applicable to counterclaims — plaintiff's remedy is by motion under Rules of Civil Practice, 109, 110 or 112.</p> <p>Where to a complaint by a bank upon promissory notes, the answer, besides a general denial that the notes are due and owing, pleads a counterclaim based upon an agreement under seal not on its face connected with the subject-matter of the action, but which was signed by the president of plaintiff as its agent, plaintiff’s motion under rule 113 of the Rules of Civil Practice to strike out the counterclaim and for summary judgment will be denied, as said rule is not applicable to counterclaims of the nature pleaded. The proper remedy is by motion to dismiss the counterclaim or for judgment on the pleadings under rules 109, 110 or 112 of the Rules of Civil Practice.</p>

<p>Condemnation proceedings.</p>

<p>Libel — demurrer to complaint setting forth neither innuendoes nor special damages — article must be libelous per se to sustain action — writing merely amusing and entertaining not basis of action.</p> <p>Where a complaint in an action for libel sets forth no innuendoes nor pleads special damages, the plaintiff is not entitled to recover damages to his reputation, unless the article be libelous per se.</p> <p>Upon proof, however, that the article was false and untrue and was published with malice, either actual or implied, the plaintiff, if his reputation were injured, is entitled to recover his damages.</p> <p>Where an article published in defendant’s newspaper neither charged plaintiff with crime nor imputed to him any moral turpitude or disgraceful conduct, and the natural interpretation of the article is that it was published merely to entertain and by style and composition to make interesting and perhaps amusing a narrative of facts otherwise dull, but in no way discreditable to plaintiff, his motion for judgment on the pleadings, consisting of the complaint and a demurrer thereto, will be denied and a similar motion by defendant will be granted.</p>

Action for an injunction restraining the defendants, comprising the canal board of the state of New York, from abandoning six and five-tenths miles, comprising sections 1 and 2, of the Erie canal.

Motion to confirm the report of a referee appointed to ascertain the liens upon surplus moneys and the priority of the several liens.

<p>Wills — execution — where subscribing witnesses sign before testator but remain in the room and later see him sign the will, which he has already declared to be such, the execution is sufficient — silence of witnesses amounts to acquiescence.</p> <p>The declaration of a testator that a certain document is his last will and his request to the subscribing witnesses to act as such may be made before, during or after the testator has subscribed his name, provided they all take place as parts of the same transaction.</p> <p>A competent testator, in the presence of practically his entire immediate family, declared a paper writing to be his last will and testament, and asked two persons, one of whom was his son-in-law, to act as witnesses. Just as testator was about to sign the document he said he felt bad and requested the witnesses to sign first and that he would sign later. While the witnesses were still in the room, in their presence, and within from fifteen minutes to an hour after they had signed their names, above the attestation clause, the testator felt better and said he would sign the will. After reading the paper aloud with his brother, testator, remarking upon the fact that the witnesses had signed it in the wrong place, signed it at the end of each page and told his son-in-law that he and his wife were getting all they should get. Later the testator expressed fear that the will might not be valid because the subscribing witnesses had signed where he should have subscribed his name and suggested that the will be redrawn and executed the following day. The next day the parties having again assembled, the testator died before the redrafted document was signed or executed. Held, that all that took place was part of the same transaction.</p> <p>The subscribing witnesses, with the knowledge, acquiescence and consent of the testator, having adopted their signatures as attesting the execution of the propounded paper and the testator’s subscription thereto, it was not imperative that the witnesses should again sign their names, and upon the facts it must be held that the paper was duly executed and entitled to probate.</p> <p>Where the evidence as to whether the son-in-law left the room after he signed the paper and before the testator subscribed it was conflicting, the finding of the jury that the testator signed his name in the presence of both of the subscribing witnesses was warranted.</p>

<p>Proceeding to probate a will.</p>

<p>Practice — examination of party and of witness before trial — action pending October 1, 1921 — examination may be had under both former Code and Civil Practice Act —• pleading — action to compel transfer of stock certificate on corporation’s books — notice to examine witness in support of immaterial defenses will be vacated.</p> <p>While the Civil Practice Act does not apply to actions and special proceedings pending October 1, 1921, when said statute took effect, the court under section 1569 of said act and “ in the interest of justice ” may apply any “ remedial provision ” contained in the statute.</p> <p>Except in special circumstances showing that the interests of justice so require, an examination before trial in an action pending when the Civil Practice Act took effect must be had pursuant to an order and not to a notice.</p> <p>Such an examination of a party may be had, both under the Civil Practice Act and under the Code of Civil Procedure, where it is shown that the testimony sought to be taken is necessary and material, and of a witness, where in addition, other necessary facts are made to appear.</p> <p>In an action to compel the transfer of a stock certificate genuine and regular on its face, the answer must be responsive to the issue tendered, and defenses may not be interposed which go to an independent cause of action not appearing on the face 'of the certificate or its transfer, and which was not raised when the certificate was offered for registration, and relating to the issue of the original certificate or to private disputes between contending owners in which the corporation defendant is not concerned.</p> <p>A motion to vacate a notice given under section 290 of the Civil Practice Act to tahe the deposition of a witness, in support of such alleged defenses, will be granted, but without prejudice.</p>

<p>Partition — husband and wife — tenants by the entirety — foreign decree of divorce obtained by husband — parties thereupon become tenants in common — grantees to whom husband conveyed property by warranty deed after his wife’s death cannot question validity of divorce decree and obtain only an undivided one-half interest in the property.</p> <p>Where husband and wife owning real estate as tenants by the entirety are divorced they hold the property as tenants in common.</p> <p>In an action for partition it appeared that the husband, who had obtained a foreign decree of divorce, after his wife’s death conveyed the premises by a full covenant and warranty deed and that his grantees conveyed different interests therein to the answering defendants whose contention was that the divorce was invalid. Held, that as the husband if living could not have questioned the jurisdiction of the court to grant the divorce, neither his grantees nor the answering defendants could question its validity and the grantees of the husband obtained only an undivided one-half interest in the property.</p>

<p>Carriers — railroads — Federal Employers’ Liability Act — assumption of risk — when helper engaged in interstate work is killed by negligence of his superior in operating a motor car, his representative should not be nonsuited on the ground that his intestate assumed the risk.</p> <p>The fellow-servant rule of the common law has been abolished by the Federal Employers’ Liability Act where the negligence of the fellow-servant is obvious or fully known and appreciated.</p> <p>It is not the duty of an employee to exercise care to discover extraordinary danger that may arise from the negligence of the employer or of those for whose conduct the employer is responsible; the employee has the right to assume that the employer or his agents have exercised proper care with respect to his safety until notified to the contrary, unless the want of care and the danger arising therefrom are so obvious that in the circumstances an ordinarily careful person would observe and appreciate them.</p> <p>Plaintiff’s intestate was a helper to one H. employed by the defendant railroad company as maintenance man, engaged in keeping signals and switch lights in order. For the purpose of transportation over its railroad to perform this work, defendant furnished a small motor car which was in charge of and operated by H. In an action brought under the Federal Employers’ Liability Act to recover for causing the death of plaintiff’s intestate, the negligence alleged was the act of H. in operating the motor car at such a dangerous rate of speed as to cause its derailment. The defendant contended that under the statute the decedent assumed all risk of injury through the negligence of his fellow-servant H. and that such assumption of risk was a complete defense to the action. Held, that defendant’s motion to set aside a verdict in favor of plaintiff will be denied.</p> <p>A request to charge the jury that if decedent knew of the habit of H. to operate the oar at the speed at which it was being operated at the time of the derailment, decedent assumed the risk of the derailment, was properly refused.</p>

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

<p>Carriers — interstate commerce — bills of lading forwarded to agent of consignor instead of to consignee — straight bills of lading not marked “ non-negotiaMe ” transferable by delivery — carrier not liable upon delivery of goods to agent of consignor upon surrender of bills of lading — conversion — fraud.</p> <p>Plaintiff consigned from Cleveland, 0., to Kingston, N. Y., to the brother of its agent, certain goods pursuant to several orders which the agent had sent in without the knowledge or consent of his brother. The consignor mailed to its agent straight bills of lading which were not marked on their face “ nonnegotiable ” or “ not negotiable ” and upon his surrender thereof to the carrier the goods called for by said bills of lading were delivered to plaintiff's agent, who receipted for them in his own name, took them away and neither he nor his brother ever paid for all of the goods. Upon dismissing the complaint in an action brought by the consignor against the carrier for the conversion or misdelivery of the goods not paid for or returned, held, that the bills of lading must be regarded from the standpoint of interstate commerce and that the statutory law governing carriers and bills of lading applied (Interstate Commerce Act, § 20; U. 8. Laws, August 29, 1916, § 29, 39 .Stat. 543) and the bills of lading could be transferred by delivery.</p> <p>There was no transfer of the property called for by the bills of lading, either to the consignee or to plaintiff’s agent, and although it was a fair inference that the purpose of the committal of the bills of lading to plaintiff’s agent and of the reservation of the jus disponendi was to secure payment for the goods, their delivery by the carrier to plaintiff’s agent did not constitute a misdelivery or a conversion.</p> <p>Defendant was also entitled to invoke the maxim that where one of two innocent parties must sustain a loss from the fraud of the third, such loss must fall upon the one, if either, whose act has enabled the fraud to be committed.</p>

<p>Practice — amending summons and complaint — administratrix in foreign jurisdiction who later takes out ancillary letters — permission to amend to sue in her new capacity — Civil Practice Act, § 192.</p> <p>Where, after the appointment of an administratrix by a Mexican court and the commencement of an action by her in that capacity, she was granted letters of administration in this state upon the same estate, a motion under section 192 of the Civil Practice Act to amend the summons and complaint in proceedings by dropping her former status and asserting that which she had acquired under New York law, will be granted.</p>

<p>Banking — joint accounts in savings banks — where all moneys on deposit were sole property of survivor accounts are not taxable although created or added to after May 20, 1916.</p> <p>Where bank accounts standing in the joint names of decedent and another, payable to either, were created or added to after May 20, 1915, and it satisfactorily appears that all of the moneys so deposited were the sole property of the survivor, the accounts are not subject to a transfer tax.</p>

Motion on the return of an order to show cause why a permanent writ of mandamus should not issue commanding the defendant, as city commissioner of finance and accounts of the city of Buffalo, to countersign an order drawn by the board of education of said city on the city treasurer in favor of the relators as compensation for legal services.

<p>Demurrer by defendant The International Railway Company to the complaint for insufficiency.</p>

<p>Legacies — general legacies bear interest from one year after issuance of letters — wish expressed in will that estate be settled within three years does not change general rule.</p> <p>The rule that general legacies bear interest from one year after issuance of letters testamentary does not yield to doubtful indications of an intention on the part of testator at variance with the statute.</p> <p>Testator in the same clause of his will by which he directed that certain general legacies of $2,000 each and under be paid as soon after his death as there were sufficient funds in the hands of his executors to pay the same either in full or in equal proportions, expressed the wish that his estate be settled within three years, and as soon as in the judgment of the executors it could be conveniently and wisely done. There were five legacies of less than $2,000 each. The other general legatees were testator’s sister, brother and nephew, whose legacies aggregated $120,000, and a sister-in-law of the defendant, the Manhattan Eye, Ear and Throat Hospital of New York and the Board of Ministerial Relief, Presbyterian Church, whose legacies totaled $24,000. The general legacies amounted to $150,000. All of the heirs at law and next of kin of testator were in the class of legatees who were given legacies of more than $2,000. The residuary estate, amounting to more than $60,000, was given to the Board of Foreign Missions and Board of Home Missions of the Presbyterian Church. The will disclosed no intention to favor the religious bodies at the expense of the blood relatives, and the executors made no claim that the condition or circumstances of the estate required longer than the one year period for settlement. Held, that the will, the language of which is doubtful, must be construed to mean that it was not the intention of testator to increase the residuary estate at the expense of his relatives; the general legacies, therefore, bear interest from one year after the grant of letters testamentary.</p>

<p>Surrogates’ Courts — objections to administrator’s accounts — jury trial denied.</p> <p>There is no constitutional right to a jury trial of objections filed to the accounts of an administrator, and a demand for such a trial must be refused.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, dismissing the complaint on the merits after a trial before the court without a jury.

<p>Appeal by defendants from an order of the Municipal Court of the city of New York, borough of Manhattan, sixth district, vacating and setting aside a judgment entered on a verdict in favor of defendants and against the plaintiffs in the sum of $204.</p>

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

<p>Carriers — bill of lading to order of seller with draft attached — buyer who takes up the draft can sue carrier for damages to goods caused by its negligence — fact that title had not passed until damage had been done does not defeat action — Pers. Prop. Law, § 101, subd. 2.</p> <p>Where the property in goods is retained for security by a bill of lading, the risk of loss is in the buyer, and even though the seller retains possession of the bill of lading the carrier is liable to the buyer for his damages resulting from negligence . or for wrongful delivery or conversion.</p> <p>Plaintiff purchased in Maine a quantity of potatoes which were delivered by the seller to the defendant railway company, consigned to the seller at New York city. Attached to the negotiable bill of lading was the seller’s draft for the purchase price less freight charges made to the order of a bank at the place where the sale took place, containing the words, “No protest. D eh ver goods only on payment of draft,” which draft was sent to a New York bank with instructions to notify plaintiff. Upon inspection of the potatoes on their arrival plaintiff, who had paid the draft and the freight charges, found that the potatoes had been damaged, because, contrary to instructions contained in the bill of lading, heat had been turned on in the car. Upon the trial of an action by the buyer to recover the loss arising upon the sale of the potatoes, the court held that the title thereto did not pass until plaintiff had paid the draft; that any damage to the potatoes arose before plaintiff had acquired title to the shipment and while the title was still in the seller who was the only one who could maintain the action. Held, error, and that a judgment entered in favor of defendant must be reversed and judgment directed in favor of plaintiff. Pers. Prop. Law, § 101, subd. 2.</p>

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

<p>Husband and wife — divorce —■ alimony — practice — exclusive method of obtaining accrued alimony is by motion to docket the amount due at the foot of the decree.</p> <p>The exclusive remedy to obtain accrued alimony is by a motion in the Supreme Court that the amount of the unpaid installments be docketed at the foot of the decree of divorce.</p> <p>Where by a decree of divorce the defendant was directed to pay a sum certain per week for the support and maintenance of a child of the marriage, a judgment rendered for plaintiff in a Municipal Court action to recover the accrued alimony will be reversed and a new trial ordered.</p>

Appeal by plaintiff from order of the City Court of the city of New York denying plaintiff’s motion for judgment on the pleadings.

<p>Appeal by plaintiffs from a judgment of the City Court of the city of New York dismissing complaint.</p>

Appeal by landlord from a final order of the Municipal Court of the city of New York, borough of Manhattan, sixth district, dismissing a summary proceeding on the merits.

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

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, in favor of plaintiff for $705.37.

<p>Motion to vacate a notice to take testimony under section 290 of the Civil Practice Act.</p>

<p>Bankruptcy — composition — payment of creditors partly in cash and partly in notes — dishonor of notes — in action by creditor on original debt the discharge in bankruptcy is a complete defense — statutory provision that certain debts are not affected by a discharge did not render the discharge conditional on payment of notes — Bankruptcy Act, § 14(c).</p> <p>The concluding words of section 14(c) of the Bankruptcy Act, “ and those not affected by a discharge,” relate to debts of a character which it is the policy of the statute not to discharge and were inserted in order that a discharge based upon a composition should not bring results inconsistent with other provisions of the statute which limit the class of dischargeable debts. Such words, therefore, do not render an unconditional discharge provided for by the first clause of said section 14(c) conditional.</p> <p>After an order of confirmation of a composition in bankruptcy had been duly made the cash payment as well as certain notes provided for in the agreement were distributed but the notes were dishonored and remain unpaid. Neither in the offer of composition, in the order of confirmation or elsewhere was there any statement as to the effect of a failure to pay the notes. In an action for goods sold brought by one of the composition creditors whose claim had been filed with the referee in bankruptcy the defendant pleaded as a defense his discharge in bankruptcy which plaintiff contended was as matter of law conditional on payment of the composition note and that the original debt, with interest, revived on the defendant’s failure to pay the note. Held, that the discharge in bankruptcy was a complete defense and that a motion to set aside a verdict in favor of the plaintiff will be granted and the complaint dismissed.</p>

<p>Contract — sale of alcohol — where it appears that it was the intention of the parties to transship goods from abroad at New York in violation of National Prohibition Act, the complaint will be dismissed.</p> <p>Where a contract in writing upon .its face is capable of performance in a lawful manner by a shipment of alcohol direct from Havana to Holland, it is competent for the defendant, who interposed the defense of illegality in an action on the contract, to show by extrinsic evidence that at the inception of the contract it was the intention of the parties that shipment be made to the port of New York. If so, the required transshipment at New York would be illegal.</p> <p>The uneontradicted testimony of one of defendant’s witnesses that his suggestion to plaintiffs’ representative when the contract was made, that the alcohol be shipped direct to Holland, was refused and that said representative insisted that the goods come via New York, clearly indicated that it was the original intention of the parties to perform the contract in violation of the National Prohibition Act, and a motion to set aside a verdict in favor of plaintiff will be granted and the complaint dismissed.</p> <p>The provisions of the contract respecting payment for the alcohol at a bank in the city of New York upon presentation of shipping documents and gauge certificate, while not conclusive as to the intention that the shipment would be via New York, were important when considered with the other uncontradieted testimony in the case.</p>

<p>Claim to recover for death of militiaman.</p>

<p>Motion by plaintiffs for a receiver. Motion by defendants to dismiss complaint.</p>

<p>Action to enforce agreement to make mutual wills.</p>

<p>Action to determine marketable title to real estate.</p>

<p>Corporations — courts — jurisdiction — action by non-resident against foreign corporation — practice — reference to ascertain whether defendant is doing business in this state.</p> <p>Sections 46 and 47 of the General Corporation Law concern jurisdiction over the subject-matter, and, in actions between foreign parties plaintiff and a foreign corporation defendant, jurisdiction is either not conferred upon or expressly denied to our courts, unless the foreign corporation is “ doing business in this state,” and if that fact be absent, jurisdiction cannot be conferred even by consent of the defendants.</p> <p>A quantity of whisky purchased by plaintiff, a resident of Minnesota, from the defendant, a corporation of West Virginia, having its principal place of business in Illinois, was destroyed by fire while stored in defendant’s warehouse in Kentucky. In an action to recover for the breach of a contract made outside of the state of New York to insure the whisky,- the complaint alleged that at all times therein mentioned the defendant was, and now is, doing business in the state of New York. The defendant appeared generally and alleged that it was not doing business in this state at the commencement of the action. Held, that a reference to ascertain such facts was a proper disposition of a motion to dismiss the complaint and it is accordingly so ordered.</p>

<p>Intoxicating liquors — search warrant — evidence obtained by unlawful search cannot be used on application for search warrant.</p> <p>Evidence unlawfully obtained should not be used as the basis of a complaint to obtain a search warrant for the seizure of intoxicating liquors.</p> <p>A police officer while investigating an alleged burglary entered defendant’s home in his absence, without a warrant, and discovered eighteen cases supposed to contain whisky, which were subsequently seized under a search warrant issued upon the complaint of the officer. Held, there being nothing to show that the complainant had any knowledge that intoxicating liquors were illegally kept, stored or deposited in the residence of the defendant, a motion to vacate the warrant will be granted and the return of the liquor ordered.</p>

<p>Brokers — contract — money advanced on request to purchase stock for another may be recovered—• failure to register as broker under Tax Law no defense.</p> <p>Upon defendant’s promise to reimburse him, plaintiff, an unregistered stock broker, advanced the money on the purchase of stock for defendant, who, on a tender of the stock to him, failed to pay for the same. Held, that plaintiff was entitled to recover the amount advanced even though it were to be held that for failure to comply with section 275-a of the Tax Law he could not recover any commissions for services rendered in making the purchase of the stock.</p>

<p>Legacies — construction of will — bequest of liberty bonds.</p> <p>Testatrix by a codicil to her will bequeathed to one described in both instruments as “ my friend,” in addition to a bequest to her by the will, “ all my Ten thousand dollars Liberty Bonds.” Although testatrix had no such bonds at her death, she was the owner of twenty $1,000 liberty bonds. Held, that the additional bequest was a specific one of $10,000 par value of liberty bonds and that the delivery of ten $1,000 bonds by the successor executor to the legatee was proper.</p> <p>The rule that blood relatives are to be preferred to strangers in construing a will has no application here, and the objections of the residuary legatees, nieces of the testatrix, to such construction will be dismissed.</p>

<p>Claims for increased cost of printing due to war conditions.</p>

<p>Motion to compel return of property held to have been illegally seized.</p>

This is an appeal by the defendant from an order of the City Court of the city of New York granting plaintiff’s motion to strike out certain paragraphs of the answer, upon the ground that the facts therein alleged are insufficient in law upon the face thereof and do not constitute defenses.

Plaintiff appeals from an order of the City Court of the city of New York granting defendant’s motion for judgment on the pleadings consisting of complaint and answer thereto.

Action to reform a deed executed by the plaintiffs to the defendant Natale Finocchiaro conveying certain real property in the city of Rochester.

<p>Banking — savings banks — joint accounts — decedent’s estate — survivor has good title to joint deposit regardless of purpose of its creation — § 249 (3) of the Banking Law is constitutional.</p> <p>The last paragraph of section 249(3) of the Banking Law declaring that the making of a deposit in a savings bank in the form of a joint account “ shall, in the absence of fraud or undue influence, be conclusive evidence, in any action or proceeding to which either such savings bank or the surviving depositor is a party, of the intention of both depositors to vest title to such deposit and .the additions thereto in such survivor,” construed not as a rule of evidence which would make it repugnant to judicial functions to decide issues of fact, but either as a rule of substantive law or as a limitation of a remedy, is constitutional.</p> <p>Shortly before the death of decedent in January, 1921, he changed a savings bank account in his own name so that it stood in the names of “ Otto Heiner and Mary Leitz, joint account, payable to either or survivor.” The proof in an action by the administrator of decedent to recover the joint account showed that it was created with the intent to enable moneys to be drawn by Mary Leitz for the accommodation of decedent and not for the purpose of creating any rights in her. Held, that the testimony in that respect could not avail the plaintiff and that there must be judgment for the defendants.</p> <p>The legislature has power to limit remedies, and construing the statute, which refers exclusively to an action where one of the parties named in the account is dead, as a rule of substantive law, it does not deprive a party of his property without due process of law.</p>

Action by vendee in contract for sale of land .to recover of vendor for loss of buildings before passing of title, due to windstorm.

<p>Mortgage — covenant by mortgagor to pay taxes after notice and demand — when simple demand sufficient to put mortgagor in default — written notice not essential — Real Prop. Law, §§ 254(2), 258(8).</p> <p>Section 254(2) of the Real Property Law declares that a covenant in a mortgage to pay taxes must be construed as meaning that should any tax become due or payable and remain unpaid and in arrears for......days after written notice by the mortgagee that such tax is unpaid, then the principal sum shall, at the option of the mortgagee, become and be due and payable immediately thereafter. Held, that the provision of section 258(8) of the Real Property Law, which relates to the same subject-matter as section 254(2) of the statute, that notice and demand for the payment of taxes due and unpaid “ may be in writing and may be served in person or by mailis permissive and declaratory rather than mandatory, and where the mortgage does not provide for written notice, it cannot be required.</p> <p>A bond provided that after default for thirty days in the payment of any tax levied upon the premises described in the collateral mortgage the whole principal sum should at the option of the obligee become due. The mortgage provided that after default in the payment of any tax for thirty days after notice and demand, the whole of the principal sum should become due. Before the commencement of an action to foreclose the mortgage for non-payment of taxes exceeding in amount $1,000, by reason whereof the security of the mortgage was considerably lessened, the plaintiff presented to defendant the official tax bill of the taxes then unpaid, and demanded payment thereof. Payment was not made and at the commencement of the action three installments of taxes on the mortgaged premises were due and unpaid. Held, that plaintiff was entitled to judgment of foreclosure and sale as against the contention of the defendant that the presentation of the official tax bill was not such a written notice as is required by section 254 of the Real Property Law.</p> <p>A mortgagee should not be required to await the actual insolvency or perhaps bankruptcy of his mortgagor before being allowed to enforce his rights.</p>

<p>Action to recover cost of repairs to highway bridge crossing railroad.</p>

<p>Real property — recording executory contract of sale as mortgage — right of subsequent purchaser to have it removed from the records under § 329, Real Property Law.</p> <p>An executory contract for the sale of real property is not a “ conveyance ” within the meaning of section 290(3) of the Real Property Law, is not entitled to be recorded under section 290 of said statute, and the recording thereof is not constructive notice to subsequent purchasers.</p> <p>A contract to convey in terms made all payments on account and the reasonable expense of the examination of the title liens upon the premises and provided that such liens should not continue after default by the purchaser. The register of the county of Kings recorded the contract of sale as a mortgage. The owners of the property defaulted on the law day. In an action by one who acquired title to the property after the contract of sale had been recorded, to have it removed from the record, held, that the contract was not a mortgage and was not entitled to be recorded as such and since it was not acknowledged it could not be properly recorded.</p> <p>Though the record of the contract did not constitute a cloud upon the title the action would lie under section 329 of the Real Property Law.</p> <p>Even though it was conceded that the then owners of the property defaulted on the law day and it was undisputed that the defendant had expended upwards . of $100 in the examination of the title, the plaintiff was entitled to judgment.</p>

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

<p>Application for an order in the nature of a peremptory mandamus.</p>

<p>Warehousemen — purchaser of receipt for value can recover thereon — General Business Law, §§ 91, 94.</p> <p>A paper given upon the storage of goods containing no reference to the matter specified in the Uniform Warehouse Receipts Act (General Business Law, § 91, subds. e, d, e, h and i), and having nothing on its face to indicate whether it was intended to be negotiable or non-negotiable, is a receipt and not a letter, memorandum or acknowledgment of an informal character under section 94 of said statute, and one who purchases the receipt for value supposing it to be negotiable is entitled to recover thereon.</p>

<p>Partition — death of plaintiff after entry of interlocutory judgment no obstacle to entry of final judgment — unnecessary to substitute new party as plaintiff.</p> <p>An interlocutory judgment in partition is to all intents and purposes a final judgment and in the event of the death of the plaintiff between the date of the entry of judgment and the sale, the substitution of a new party plaintiff is unnecessary; under and pursuant to the terms of the interlocutory judgment the property may be advertised and sold and the sale confirmed and conveyance duly made.</p> <p>Under section 1018 of the Civil Practice Act a mere creditor is not eligible as party plaintiff and his motion to be substituted in the place and stead of the deceased plaintiff must be denied, and the fact that no heir can be found to accept substitution has no bearing upon the situation.</p>

<p>Canals — negligence of state in maintaining highway bridge over canal — right of owner of truck which broke through to recover damages — failure of state to keep capacity signs posted — previous posting insufficient to show claimant guilty of contributory negligence — Canal Law, §§ 126, 130.</p> <p>Under section 126 of the Canal Law it is the duty of the state to maintain a canal bridge in a safe and substantial condition for ordinary traffic.</p> <p>Where a reasonable inspection by state authorities of a wooden truss bridge over the old Erie canal would have disclosed that a piece of truss timber supporting the stringers of the bridge, which gave way under the weight of claimant’s loaded truck •—• six and a half tons — was at the time decayed, dozy and unfit for use as a bearing member of the bridge, it was negligence on the part of the state to permit the use of the bridge in that condition and it is liable for the damage done to claimant’s truck unless he was guilty of contributory negligence.</p> <p>The evidence fairly established that at the time of the accident there were no capacity signs erected at either end of the bridge and there was also evidence to the effect that after the accident signs giving notice to the traveling public that the maximum capacity of the bridge was two and one-half tons were found lying on the ground at some little distance from the bridge at either end, but how they came to be there was not shown. Held, that the previous posting of the capacity signs at either end of the bridge was not sufficient to make claimant guilty of contributory negligence because of his attempt to cross the bridge with a load in excess of two' and one-half tons.</p> <p>It is the failure to heed the warning of the capacity sign which the statute (Canal Law, § 130) declares to be contributory negligence and if there be no sign there is no warning, hence no negligence.</p>

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

<p>Wills — mutilation — original will so far as it can be ascertained and proved will be admitted to probate.</p> <p>Erasures, interlineations, mutilations and additions made to a will after its execution effect no change unless made with all the formalities required by the statute.</p> <p>An instrument in writing offered for probate as a will had been mutilated as follows: The 2d and 3d paragraphs had been cut out; the name of a sister and the place of her residence had been cut out of the 4th paragraph and the name of another sister, typewritten upon a piece of paper with a different color type ribbon was pasted on the reverse side of the page, and by the same process the 7th paragraph was also mutilated by cutting out the name of one of the executors and appointing a sister. The lawyer who drew the will and who was one of the subscribing witnesses was dead and the other subscribing witness, a stenographer in the lawyer’s office, testified that when the will was executed there was no mutilation of the same. Neither the contents of the missing parts of the will nor their substance were proved. Held, that all of the paper which remained was entitled to be admitted to probate, for the reason that not having been revoked, it was still the will of decedent.</p> <p>The 2d, 3d and 4th paragraphs are void; that portion of the 7th paragraph relating to the power of sale is effectual, but in so far as said paragraph appoints a sister of testatrix an executrix it is void, and the other named executor being dead letters testamentary with the will annexed may issue upon proper application therefor.</p>

<p>Executors and administrators — accounting — note of beneficiary held by estate — Statute of Limitations — when beneficiary of trust entitled to have his note eliminated as asset and not used as an offset.</p> <p>A decree settling the accounts of the executors of a decedent who died September 19, 1920, offset against the income of a trust fund created by the will a demand note dated January 15, 1913, given by the beneficiary of the trust fund to the ■ decedent. Upon opening the decree to permit the maker of the note to defend, it appeared that he had been without the state for a portion of the time but not enough to avoid the Statute of Limitations. Held, that the note was barred by the running of the Statute of Limitations and that the decree should be modified by eliminating the note as an asset of the estate and also by the elimination of the provision requiring an offset of the same against the income due the maker of the note from the trust fund.</p>

<p>Motion for a mandatory order directing a third party to pay to a receiver the cash surrender value of a policy issued on life of a judgment debtor.</p>

<p>Husband and wife — where parties after a ceremonial marriage void because the woman had a former husband living, continue to cohabit after the first husband’s death, their union becomes legitimate — second husband cannot maintain action for annulment — common-law marriage — Laws of 1907, chap. 742.</p> <p>Where in an action to annul a marriage on the ground that at the time it was entered into defendant was married to another man, it appears that plaintiff had lived with and acknowledged the defendant as his wife for fourteen years after the death of her first husband in August, 1907, it will not be held that plaintiff was never in fact defendant’s husband because they entered into their relationship under an express contract which was void and because they have not since the death of the first husband consented to live together under any other arrangement.</p> <p>In an action for divorce brought by the defendant herein against her first husband neither an interlocutory nor a final judgment was ever entered, but when the testimony was taken on June 3, 1903, the plaintiff herein was present. Four months later he and the defendant were married by a minister and lived together as husband and wife and were generally recognized as such up to April, 1921, when on account of domestic infelicities they separated. Held, that such continued recognition of the marital relationship of the parties had ripened into a status.</p> <p>No public policy requires that the defendant be branded as one dishonored, and she will be granted judgment for the dismissal of the complaint, with costs.</p> <p>While there was no legal marriage between the parties to the present action up to the time of the death of defendant’s first husband, yet from January 1, 1908, by virtue of the statute (Laws of 1907, chap. 742) they were husband and wife by reason of a common-law marriage.</p>

<p>Motion for judgment dismissing complaints.</p>

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

Action to restrain the defendant permanently from maintaining and continuing a building on land to the possession of which the plaintiff claims it is alone entitled and from selling refreshments and other merchandise in said building.

<p>Motion by defendant to set aside a verdict directed by the court and for a new trial upon the judge’s minutes.</p>

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

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

Motion on behalf of the defendant to dismiss the complaint on the ground that it fails to state a cause of action and that the plaintiffs’ remedy, if any, is in equity.

<p>Motion to vacate a notice of examination before trial.</p>

<p>Motor vehicles — speed on bridges in New York city — general ordinance limiting speed to twenty miles an hour is applicable as well as the special bridge ordinance.</p> <p>The effect of the bridge ordinance which declares that any speed exceeding fifteen miles an hour shall be prima facie evidence of a violation of the ordinance was to establish an absolute speed limit on bridge traffic lower than the twenty-mile rate provided by the general speed ordinance of the city of New York, passed two years earlier.</p> <p>The bridge ordinance, therefore, is not the only one applicable to the operation of motor vehicles on public bridges in the city, and upon proof that defendant was driving over the Williamsburg bridge at the rate of twenty-seven miles an hour, his conviction under the general ordinance will be affirmed.</p>

<p>Transfer tax — non-resident decedent — rights to subscribe to national bank stock not taxable — deduction for funeral expenses — Tax Law, § 220(2).</p> <p>Under section 220(2) of the Tax Law, which expressly excludes from its operation any interest in a banking corporation other than shares of stock therein, transfers of subscription rights of stockholders to the increase of the capital stock are not taxable.</p> <p>The funeral expenses of a non-resident incurred here should be deducted in full from the New York estate, consisting entirely of personalty, prorated between the taxable property and the entire assets within this state.</p> <p>At the date of the death of a non-resident shares of stock in a national bank, owned by her, and the stockholders’ rights to subscribe to an increase in the capital stock, were dealt in as separate commodities, and the approval of the comptroller of the currency of the United States, which was required to validate such increase, was not given until more than a month after the death of decedent. Held, that an order fixing a transfer tax which included the subscription rights of decedent will be modified by eliminating the tax thereon.</p>

<p>Motion to direct a verdict.</p>

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

<p>Crimes — proceedings before grand jury — court may not express an opinion before the jury as to sufficiency of evidence to justify indictment— when .indictment so found will be dismissed.</p> <p>In order to prevent an invasion of his constitutional rights one charged with having committed a crime is entitled to have all proceedings leading to his indictment and his conviction considered according to well-settled principles of law and in accordance with the statute in such case made and provided.</p> <p>In a “ John Doe ” proceeding defendants under subpoenas duces tecum produced certain books, papers, vouchers, time sheets, etc., dealing with or affecting work, labor or services performed under public contracts or on public work between specified dates. Defendants signed waivers of immunity and were examined under oath in this proceeding. Later defendants in a communication to the foreman of the grand jury stated that they had been advised that the grand jury was investigating a charge that they had presented a false bill of audit to the county of Nassau in violation of section 1872 of the Penal Law and requested an opportunity to appear before that body and give certain evidence. The grand jury heard the testimony taken in the “ John Doe ” proceeding affecting the defendants when a number of witnesses were examined and heard further testimony in a “ John Doe ” proceeding in which the names of both of said defendants were striken out. The grand jury having failed to find an indictment against the defendants was called before the court and instructed as follows: “ I understand that there is some question in the minds of some of you as to some facts being brought out. There was an investigation in the John Doe proceeding before me as committing magistrate. During that investigation certain facts were brought out which, in my judgment, were sufficient to warrant the finding of an indictment. I do not advise any grand jury to indict. Having those facts in mind, I submit the case to the grand jury. I do not know what was brought out before your body, but I know what facts were brought out before me,” and after defining an indictment the court continued, “ In a proceeding that I had before me one of the accused admitted that he had charged more to the county than he should have charged. I do not know whether that evidence came out before you. I am going to send this matter back to you for further investigation. The clerk will enter an order on the minutes sending the matter back to the grand jury for further investigation. You will investigate, gentlemen, as I believe you should, whether the crime of presenting a false claim was committed; also whether grand larceny, in obtaining money under false pretenses, was committed. If you want any further information all the testimony which came before me as committing magistrate is available and you can have it all. You may retire.” After the grand jury had again refused to find an indictment, the Appellate Division, on defendants’ motion to compel the justice to return to defendants the books, papers, etc., taken from their possession pursuant to the subpoenas duces tecum, granted an order directing the return of all papers seized, except such as had been turned over to the district attorney, and in an opinion handed down granting a motion for leave to appeal to the Court of Appeals and denying a motion for a stay, held that the subpoenas were issued without jurisdiction and that the private books of defendants were seized without warrant of law and in violation of section 8, article 2 of the Civil Rights Law.</p> <p>The order for the resubmission of the charge to the grand jury was based upon an affidavit of an assistant district attorney which contained not the slightest suggestion that any additional evidence could or would be presented to the grand jury but simply stated that the affiant had been informed by the court and believed that there was further evidence to be produced and further witnesses to be examined without any statement as to what the proposed evidence was or what testimony the witnesses might be able to give concerning the charge under examination. Held, that the affidavit was not sufficient in and of itself to warrant the order of resubmission.</p> <p>The statement made by the court to the grand jury that “ there was an investigation in a John Doe proceeding before me as a committing magistrate, during which investigation certain facts were brought out which, in my judgment, were sufficient to warrant the finding of an indictment,” was in legal effect a charge that as matter of law there was sufficient evidence against the defendants to warrant their indictment, thereby taking from the grand jury the determination of the question whether a crime had been committed. The effect of this charge was not cured by a further statement of the court that “ I do not advise any grand jury to indict.”</p> <p>Thereafter said grand jury returned an indictment against defendants upon practically the same testimony and the formal testimony of the comptroller and county treasurer which could not of itself furnish the basis of an indictment. Held, that the record disclosing a gross invasion upon the province of the jury by the court in exerting upon them an influence calculated to affect their judgment , and opinion, which influence was exercised in disregard of well-settled principles of law and against the rights of the individual, defendants’ motion to dismiss the indictment will be granted.</p>

<p>Wills — contested probate — witnesses — when one who would take more under a will than in case of intestacy is competent to testify on behalf of contestants to personal transactions with deceased — Civil Practice Act, § 347.</p> <p>An eighteen-year-old son of testator who would take more under the will than if probate were denied is not an incompetent witness for the contestants under section 347 of the Civil Practice Act.</p> <p>The witness, without attempting to release or assign his interest under the will or as an heir at law in order to qualify, testified over the objection of proponent concerning personal transactions with the decedent. Held, that his examination was not in behalf of persons deriving their interest or title from, through or under him, and a contention that if probate were denied, the difference between what he would have received under the will and his distributive share of the estate, would go to his mother, brothers and sister, thus increasing their rights in the estate, and that they are persons who derive their interest or title to a part of decedent’s property from, through or under the witness, is untenable.</p> <p>A motion to set aside a verdict against the will and for a new trial denied and probate refused, with costs to both parties and an allowance to the special guardian.</p>

<p>Transfer tax — real estate held by the entirety — value of dower should be deducted before tax is computed — Tax Law, § 220(7).</p> <p>A transfer tax being a special and not a general tax may not be levied unless the circumstances are such as fairly bring the matter within the provisions of the statutes and there is a clear warrant in the law for its imposition; and all doubt as to the construction of such a statute should be resolved in favor of the person chargeable with the payment of the tax.</p> <p>Section 220(7) of the Tax Law, as amended by chapter 664 of the Laws of 1915 and chapter 323 of the Laws of 1916, provides: “ Whenever property is held in the joint names of two or more persons, or as tenants by the entirety, * * * upon the death of one of such persons the right of the surviving tenant by the entirety, * * * to the immediate ownership or possession and enjoyment of such property, shall be deemed a transfer taxable under the provisions of this chapter in the same manner as though the whole property to which such transfer relates belonged absolutely to the deceased tenant by the entirety, * * * and had been bequeathed to the surviving tenant by entirety, * * * by such deceased tenant by the entirety, * * * by will.” While said section as so amended was in force, decedent and his wife as tenants by the entirety acquired the title to two parcels of real estate. Held, that before a transfer tax was assessed the value of the widow’s dower should be deducted from the value of the property assumed to have been owned by the decedent at his death.</p> <p>The word “ absolutely ” is used in said section 220(7) to distinguish the assumed ownership from the ownership by the entirety, and not to indicate that the former was to be free from the dower right.</p> <p>However, a claim of the widow for one-half of the rents and profits of certain real property purchased by decedent and his wife in part, with the proceeds of other real estate, was properly disallowed.</p>

<p>Discovery proceedings.</p>

<p>Surrogates’ Courts — contested probate — special jury proper in New York county — intricate and important case — Surrogates’ Court Act, § 316 — Laws of 1901, chap. 602, § 5.</p> <p>Section 316 of the Surrogate’s Court Act, as amended by chapter 653 of the Laws of 1922, in effect April 13, 1922, extends to trials in the Surrogate’s Court of the county of New York the provisions of any statute, including the one providing for a special jury in said county (Laws of 1901, chap. 602, as amended), section 5 of which authorizes an application by a party for a special jury in an important or intricate ease.</p> <p>The history of the Eno will contest and its importance and intricacy bring it within the requirements of the statute relating to special juries in New York county and a motion of proponent for a special jury will be granted.</p>

<p>Action to recover a bank deposit.</p>

<p>Submission of a controversy.</p>

<p>Canals — negligence — death caused by fall of automobile truck from fill constructed to take place of bridge across canal — road not a public highway — no recovery against state.</p> <p>In 1917, as a substitute for a farm bridge formerly located between Herkimer and Little Falls, the state constructed under authority of chapter 702 of the Laws of 1915, a fill across the Erie canal for the use and benefit of the owners of lands intersected by the canal. The fill consisted of sand, gravel and small stones drawn from the spoil taken from the Mohawk river during the construction of the Barge canal. The old towpath ran east of the north side of the Erie canal to Little Falls and another possible route to that point was to cross the fill from its intersection with the towpath, cross the meadows of one S. and the West Shore railroad tracks to a state highway. The latter route involved the opening of four gates or bars which blocked the passage and both routes were more or less made use of by vehicles, and in drawing sand and gravel from the spoil banks. The state having sold 3,000 cubic yards of sand from the spoil of the Mohawk river, about 800 or 900 feet east of the intersection of the fill with the towpath, where there was a screening plant which had been leased by an ice company to the purchaser of the sand, the superintendent of public works on May 14, 1919, issued to said purchaser a permit to use the property of the state in the removal of sand, which permit contained the following clause; “ Any damage done to the canal banks or other structures by reason of the hauling of material under this permit, shall be immediately repaired by said South Side Coal Company at its own cost and expense.” Claimants’ intestate, an employee of the ice company, having been directed on August 11, 1919, to go and make certain repairs to the screening plant, took a converted Knox truck weighing some 4,400 pounds and drove west on the highway, thence across the West Shore tracks and the farms of S. and the fill to the old towpath; he then turned east and proceeded down the towpath to the screening plant, arriving safely. On returning he drove west on the towpath to the fill and turned 'at the intersection, when the wheels of the truck skidded and went over the west edge of the fill. Claimant’s intestate was on the right-hand side of his ear, and in the fall was caught beneath the machine in about a foot of water remaining in the canal and was drowned. The fill which so far as shown was entirely adequate for the purposes for which it was constructed had been repaired the preceding year and frequently used up to the time of the accident in question. The deceased had no permission from S. or the railroad company to cross on their respective lands or to cross on the fill. Held, that the cause of the accident was the failure of deceased to use due care in turning the corner of the intersection of the fill and the towpath and that the state owed to him no duty which it had failed to fully discharge and perform either in the construction or maintenance of the fill and that the state was not guilty of negligence in such construction or maintenance at the time when and the place where the deceased met his death, and a claim for damages under section 47 of the Canal Law will be disallowed.</p> <p>Each of the four gates which were taken down in order to permit of the journey of claimants’ intestate by the route which he took was notice to him that the way was not a thoroughfare nor in any sense a public road and was equivalent to a declaration that travelers along that route accepted whatever perils might be presented, and the deceased in adopting that route did so at his peril and without recourse against the state for any mishap.</p>

<p>Insurance — right of receiver in supplementary proceedings to compel payment of cash surrender value of policy on debtor’s life — practice — mandatory order — Civil Practice Act, § 793.</p> <p>Where a judgment debtor has the absolute power of direction over a policy of insurance on his life, the cash surrender value of the policy should be considered as in the possession of a mere custodian, i. e., the insurance company, and under section 793 of the Civil Practice Act a mandatory order to compel payment of such cash surrender value to the receiver in supplementary proceedings of the judgment debtor, will be granted upon due and proper application of the judgment creditor.</p>

Appeal by tenant from final order of the Municipal Court of the city of New York, borough of Manhattan, ninth district, in favor of landlord, granted on landlord’s motion for judgment on the pleadings.

Appeal by defendants from an order of the City Court of the city of New York sustaining the demurrer interposed by plaintiff to the first defense set forth in the amended answer of the defendants, and from an order denying defendants’ cross-motion for judgment on the pleadings.

<p>Practice — Municipal Court, city of New York— rule 113, Rules of Civil Practice, applicable — negotiable instruments — insufficient defenses — summary judgment granted.</p> <p>The procedure furnished by rule 113 of the Rules of Civil Practice may in a proper case be availed of in the Municipal Court of the city of New York. The answer in an action brought in said court on a promissory note pleaded as a defense that the note was given for the amount of plaintiff’s bill against the defendant for accommodations furnished to him at plaintiff’s hotel; that the indebtedness was that of defendant’s employer, a corporation named; that about the date of the note plaintiff refused to permit defendant to remove his baggage from the hotel unless he made a payment on the bill and that defendant for the purpose of getting possession of his baggage made a payment to plaintiff and gave the note in suit for the balance of his bill. Upon a motion for summary judgment under rule 113 of the Rules of Civil Practice the affidavit of plaintiff showed that the pending actions set out in the answer as a defense to the suit, were dismissed by judgments and the costs of such previous actions were paid to defendant’s attorney. Held, that such averments were not satisfactorily met in defendant’s opposing affidavit which stated that although two prior actions were discontinued, “ there remains pending this action,” and that summary judgment was properly awarded on the ground that there was no issue to be tried.</p>

<p>Landlord and tenant — action for rent — rental value fixed by judgment in prior action — plaintiS to recover an increased rent must plead and prove a change of conditions.</p> <p>At the opening of the trial of an action to recover rent for the month of October, 1921, in which the defendant pleaded the statutory defense and also the defense of res adjudícala, it was conceded that in a prior action between the same parties a judgment was rendered in favor of plaintiff, fixing the rental value of the premises at a less sum than that sued for in the present action. A motion to dismiss the complaint having been denied defendant took an exception and a verdict was rendered in favor of plaintiff for the full amount claimed. Held, that plaintiff in order to recover was not only bound to prove facts showing a change of conditions but under the statute (Laws of 1921, chap. 434, § 7) it was necessary for him to plead facts showing said change before he could remove the bar of the former judgment.</p> <p>The statute being a remedial one, and, therefore, retrospective in its operations, applies to a prior judgment rendered during the period covered by the housing laws and the judgment herein will be reversed, with costs, and the complaint dismissed, with costs, but without prejudice to another complaint drawn in compliance with the statute.</p>

Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of Manhattan, ninth district, amending a judgment in plaintiff’s favor.

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

<p>Practice — negligence — automobile collision — payment by insurance company of part of his damages to its insured —■ joint action by company and insured against owner of other car ■—• counterclaim for damages to other car properly pleaded — Civil Practice Act, §§ 474, 477.</p> <p>Before the commencement of an action growing out of an automobile collision in which the ear of G. and that of defendant were damaged, an accident insurance company, conceding its liability on a policy issued to G., paid him a certain sum and took an assignment of all his rights, claims and causes of action against the defendant, to the extent of the amount paid for the assignment. The action was brought by G. and the insurance company as parties plaintiff to recover more than double the sum paid by the insurance company to G. The insurance company claims to be entitled to the sum paid by it to G. and he claims the balance of the amount sought to be recovered, to make good his loss over and above what he received from the insurance company. Upon the denial of a motion under rule 109 of the Rules of Civil Practice to strike out a counterclaim against G. for damages to defendant’s car, held, that in the circumstances the insurance company stood in G.’s shoes to the extent of its payment to him and that any cause of action against G. which could be interposed if he were suing alone could be pleaded herein.</p> <p>Under sections 474 and 477 of the Civil Practice Act the interests of all parties can properly be protected if defendant’s claim is litigated on the trial and judgment can be ordered for whoever is entitled to relief in accordance with the verdict of the jury, under proper instructions.</p>

<p>Automobile — registration fee of car adapted for transportation of goods — mandamus — Highway Law, § 282(6).</p> <p>A peremptory order of mandamus will be granted to the owners of a Ford car usually known as a “ Suburban ” or “ Station Wagon ” to compel the state tax commission to accept and file said owners’ application for the registration of their said motor vehicle and to accept payment of the fee of seven dollars and sixty-three cents, provided for by section 282(6) of the Highway Law, assign to such motor vehicle a distinctive number and issue and deliver to the petitioners a certificate of registration for the year 1922.</p>

<p>Action in ejectment.</p>

<p>Certiorari — writ to inquire into cause of detention — warrant of arrest — refusal of judge acting within his jurisdiction to vacate — when writ of certiorari will not be sustained.</p> <p>The writ of certiorari to inquire into the cause of detention of persons held in the custody of the law has not been abolished notwithstanding what appears to be a declaration to that effect in section 1283 of the Civil Practice Act, but the writ has been preserved by section 1230 of said act.</p> <p>Under section 77 of the Civil Practice Act such a writ may be sued out in the alternative to meet the situation of the relator, and in some cases either it or a writ of habeas corpus may be resorted to after the failure of the other to accomplish the desired end.</p> <p>Where it is clear that a justice of the Supreme Court in refusing to set aside a warrant of arrest, in execution of which relator was committed to jail, acted within his jurisdiction in holding that the warrant should stand and that relator’s remedy was by an appeal from the order denying his motion to vacate the warrant and such an appeal has been taken, the court at Special Term upon finding that the offense for which relator is imprisoned is bailable will not sustain a writ of certiorari.</p>

<p>Guaranty and suretyship — pleading — guaranty of payment — not necessary to allege inability to collect from principal — difference between guaranty of payment and of collection.</p> <p>Guaranties of payment differ from guaranties of collection because the conditions upon which the liability of the respective guarantors is predicated are different. In each the guarantor agrees to protect the creditor from the consequences of the principal’s default. In the ease of a guaranty of payment the guarantor may be sued immediately upon non-payment by the principal; in that of a guaranty of collection he may not be held until the creditor has unsuccessfully exhausted the ordinary means of collection against the principal. The net result of the difference is a postponement of the date when an action may be instituted against the guarantor.</p> <p>A writing by which the defendant “ hereby guarantees ” to the plaintiff “ the payment for such business as may be placed with ” plaintiff by a certain Cuban corporation, is a guaranty of payment and not of collection, and in an action upon the guaranty the complaint need not allege inability to collect from the principal debtor.</p>

<p>Landlord and tenant — action for rent — New York city — pleading — holding over by old tenants for several months after new lease went into effect — joining old tenants and new lessee in action for rentals •and for damages for breach of lease — when causes of action improperly joined— Civil Practice Act, §§ 117, 213.</p> <p>A lease of an apartment in the city of New York having been made to L. and D. for a term ending September 30, 1920, the landlord on April 26, 1920, leased the same apartment to C. for a term of three years from October 1, 1920, at a yearly rental of $4,500. On June 11, 1920, L. and D. were notified of the new tenancies but continued in possession until June 30, 1921, when they abandoned the premises, and C., though he was given notice of the vacancy, refused to enter into possession of the apartment and paid no part of the rent reserved in his lease. Held, that in an action for rent the plaintiff was not entitled to recover more than the reasonable rent of the premises for the period covered by the “ Housing Laws ” and in no event against L. and D. in respect of any time subsequent to October 1, 1921.</p> <p>A complaint against L., D. and C., in form warranted by section 211 of the Civil Practice Act, alleged as a first cause of action after setting forth the several leases, that no part of a fair and reasonable rent for the period commencing October 1, 1920, and ending September 30, 1921, or $4,500, had been paid by L. and D.; that plaintiff being in doubt as to the person or persons from whom he is entitled to redress, brings the action under section 213 of the Civil Practice Act with intent that the questions as to which of the defendants is liable and to what extent may be determined as between the parties and finally that there was due and owing from C. or from L. and D., as the court may decide, to plaintiff the sum of $4,500, with interest on monthly installments from October 1, 1920, to October 1, 1921. For a second cause of action the plaintiff realleged the facts above outlined and added that plaintiff endeavored to again lease the said apartment with the purpose of reducing the losses and damages, but that the best rent he was able to obtain for the remaining few years of C.’s term was $4,200 a year, whereby he had been damaged in the sum of $600. The third cause of action was for brokerage commission paid on C.’s lease, and a fourth cause of action was for certain alleged injury to the premises caused by the occupancy by L. and D. Held, that regardless of the pleader’s doubt, the first cause of action undertook to set forth a claim against L. and D., at least as statutory tenants for the reasonable rental during the time of their occupancy of the premises and also a cause of action against C. for the rent reserved in his lease, alleged to be reasonable.</p> <p>The first, second and third causes of action pleaded alleged no cause of action in favor of plaintiff against D. and will, therefore, be dismissed as against him, but a cause of action was set forth against C.</p> <p>The fourth cause of action being entirely unrelated to the cause of action against C., should not as matter either of law or of practice be united with it in the same complaint.</p> <p>In view of the inartificial form of the complaint defendant D.’s motion, which is equivalent to an omnibus motion under section 117 of the Civil Practice Act, to strike from the first cause of action alleged all references to C. on the ground that they are irrelevant, unnecessary and impertinent and may tend to prejudice the fair trial of the action, and for judgment dismissing the second cause of action as not stating facts sufficient to constitute a cause of action, or to strike out all references to C.; for judgment dismissing the third cause of action as insufficient on its face and for the dismissal of the fourth cause of action or striking it from the complaint on the ground that it is for damages to real property, and improperly united with the preceding causes of action under section 258 of the Civil Practice Act and rule 102 of the Rules of Civil Practice; to strike out the name of C. as a defendant and for other and further relief, will be granted.</p>

<p>Suits to enjoin alleged unfair competition.</p>

<p>Action to recover balance alleged to be due from firm of stockbrokers.</p>

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

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

<p>Claims — when state not liable in tort — when compensation will not be made for consequential damages — a manufacturer not entitled to damages for the roiling of water caused by dredging operations in the construction of the Barge canal.</p> <p>In the absence of any statute waiving immunity and assuming liability the state cannot be held liable in tort. A statute waiving immunity and assuming liability would be in derogation of the sovereignty of the state. Such statute must be strictly construed and a waiver of immunity from liability must be clearly expressed.</p> <p>There can be no recovery had for consequential damages resulting from a public work prosecuted in the public interests without trespass or negligence pursuant to legislative authority and direction but if in the prosecution of the work private property is destroyed the damages are not consequential and compensation must be made.</p> <p>The claimant, a manufacturer of woolen goods, in the operation of its factory located upon land on and adjacent to the northerly bank of Seneca outlet, a navigable stream, at Waterloo, N. Y., uses a large amount of water which must be clean, clear and reasonably free from sediment. The water used was that flowing in said outlet, and diverted therefrom first through the old Cayuga-Seneea canal, thence through a privately owned fallway or hydraulic canal to claimant’s factory. Under and pursuant to statute (Laws of 1909, chap. 391) the state, for the purpose of forming a channel sufficient for navigation purposes, conducted by its contractor dredging operations in the bed of said outlet upstream from claimant’s land for a distance of between six and seven miles. The dredging was not confined at all places to the bed of the stream, but in order to better the alignment or reduce the curvature of the channel, cuts were made into the bank and through uplands forming beds in the stream. The pumping ashore of the excavated material behind dikes by the use of a floating hydraulic dredge necessarily and unavoidably roiled the water flowing into the stream, and in this roiled and turbid state the water flowed down to claimant’s factory in a condition unfit for use therein. It was conceded that the dredging, which continued for about two years from August 13, 1913, was intelligently carried on without negligence or delay and that the roiled condition of the water was the inevitable and unavoidable result of the performance of the work. The operation of a filtration plant, the installation of which was begun by claimant in October, 1913, and completed in December of that year, removed the sediment from the water and so cleansed it that no damage resulted thereafter from the use of the water. Goods the manufacture of which had commenced before the filtration plant was completed were not in condition for market until after the filtration plant had been installed, and a portion of these goods when finished were of inferior quality due to the dirty water used at the initial stages of their manufacture, and other portions due to the same cause were necessarily refinished or redyed or otherwise rehandled, thus adding to the cost of manufacture. It was also claimed that the use of the filtration plant added to claimant’s operating costs. Held, that as claimant was not damaged until by artificial means it diverted the roiled water from the stream and led it into its factory, the damage was not direct but was purely consequential, and a motion to dismiss the claim, upon the ground that the facts proven were insufficient to constitute a valid claim or cause of action against the state, will be granted.</p>

<p>Discovery proceedings.</p>

<p>Appeal by the state tax commission from the order fixing the transfer tax herein.</p>

<p>Motion to dismiss objections, to petition for probate of will.</p>

<p>Negotiable instruments — consideration — note given to pay balance due on account of another — decedent’s estate — liability of maker’s estate to pay the note — Neg. Inst. Law, § 51.</p> <p>Under section 51 of the Negotiable Instruments Law an antecedent or preexisting debt constitutes value and is a sufficient consideration to support a promissory note given in payment thereof.</p> <p>Decedent, an employee of a firm of stockbrokers, having opened an account with them in the name of one W., gave orders to buy and sell on that account cotton for future delivery, and orally guaranteed the payment of any indebtedness resulting from any of the transactions carried on for W. When the account was closed out there was a balance due the stockbrokers of $2,410, and immediately decedent wrote to the firm a letter as follows: “ Referring to the indebtedness of $2,410 to you by A. W. Watkins, I beg to confirm my verbal guarantee of its payment.” Later, in conversation, a member of the firm stated to decedent that as the account had been opened by him the indebtedness should be paid by him and thereupon decedent executed and delivered to the firm his promissory note for the amount of the debit balance, with interest, payable on demand for value received. The executrix of decedent disputed the claim on the note and in the agreed statement of facts it is conceded that at no time had the firm had any dealings, transactions or communications of any kind with W.; that he was unknown to the firm and that all dealings, transactions and communications relative to the account in his name were carried on by and with the decedent and according to his instructions. Held, that it was a fair inference that in reality the account was the personal one of decedent under the fictitious name of Watkins and the note given by decedent was in payment of his personal indebtedness, the identity of Watkins or his actual existence not having been established by either of the parties.</p> <p>Upon delivery of the note the account was marked “ settled ” upon the books of the firm and any claim against W. was discharged by them. Held, that in the circumstances there was a sufficient .consideration for the note and it was a valid claim against the estate.</p>

Appeal by plaintiff from an order of the City Court of the city of New York, setting aside a verdict of a jury in favor of plaintiff and granting a new trial unless plaintiff stipulated to reduce the amount of recovery to $200 and interest.

<p>Contracts — when portrait is not a proper likeness artist cannot recover.</p> <p>On the trial of an action to recover the agreed price for the painting of a portrait of defendant’s daughter, who was present in court, plaintiff was asked: “ Q. She looks now substantially as she did at the time you painted her? A. Practically the same. Q. You consider the portrait which has been offered in evidence * * *, from an artistic standpoint, as a perfect likeness of the subject, do you not? A. I do.” Upon appeal, the subject of the portrait being present, and it being stipulated that the court might compare the original with the portrait, held, that the portrait was not a proper likeness of defendant’s daughter, and the judgment in favor of plaintiff will be reversed and a new trial ordered.</p>

<p>Action to determine a claim to real property.</p>

<p>Proceeding to determine value of legal services.</p>

<p>Real property — tenancy by deceased in common with surviving wife — decedent’s estate — when surrogate will grant executrix permission •to sell undivided one-half interest of deceased even within one month after grant of letters — bond.</p> <p>Where at his death the testator and his wife were the owners as tenants in common of certain real estate and within a month of the grant of letters testamentary the wife as executrix of her husband makes application under section 234(6)' of the Surrogate’s Court Act for leave to sell the undivided one-half interest in said real estate, which at present can be sold for a fair price, for the purpose of distribution, as the interests of infants are involved, the prayer of the petition may be granted as matter of discretion, thereby avoiding a partition suit even though no order to advertise for debts against the estate has been made.</p> <p>The order to be entered will direct that the proceeds of sale be paid to the executrix upon her giving a bond subject to the approval of the court.</p>

<p>Motion to strike out demand for jury trial and amended objections on probate proceeding.</p>

<p>Wills — duplicate instruments — failure to produce both copies — presumption of revocation.</p> <p>A will having been executed in duplicate one duplicate was given to the testatrix. Upon a proceeding brought by one of the executrices, the principal legatee, to probate the other duplicate which the lawyer who drew the will had retained and put in his safe, held, that the presumption of revocation arising from the non-production of the other duplicate applied to both, and probate of the duplicate offered as the last will and testament of decedent will be denied in the absence of explanatory evidence as to whether or not the missing duplicate had been lost or destroyed before or after the death of the testatrix.</p>

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

Appeal by the defendant from a judgment rendered by Henry O’Keefe, a justice of the peace of the town of Greenville, N. Y., in favor of the plaintiff on the 11th day of February, 1922, awarding to the plaintiff the possession of the cow mentioned in the amended complaint in the action and awarding to the plaintiff the sum of forty-five dollars, the value of said cow, to be paid by the defendant if ■ possession of the said cow is not delivered to the plaintiff, with two…

<p>Motion to set aside order for examination of witnesses.</p>

<p>Practice — County Court — security for costs — plaintiff who moves into county during action not entitled to have her undertaking for costs canceled.</p> <p>Under section 1522 (A-l) of the Civil Practice Act the plaintiff in a County Court action, in order to avoid the necessity of giving security for costs, must reside in that county at the commencement of the action.</p> <p>Where the plaintiff in a County Court action, having complied with an order requiring her to file security for costs on the ground that she is a non-resident of the county in which the action was brought, moves into said county, her motion to vacate and set aside said order will be denied.</p>

<p>Real property — sale at auction — agreement that sale was free of incumbrances and that taxes would be paid by seller — taxes which became a lien between time of auction and day for passing of title must be allowed out of purchase money.</p> <p>Among the terms of sale of premises sold at auction by defendant, the then owner, was the following: “ All taxes, assessments and water rents which, at the time of sale, are liens upon the property will be allowed out of the purchase money provided the purchaser shall, previous to the delivery of the deed, produce proof of such liens and duplicate receipts for the payment thereof, and the existence of any unpaid tax or assessment shall not be deemed an objection to the title, provided the amount thereof is so allowed,” and further that “ The property will be conveyed by bargain or sale deed with good title in fee simple free from all encumbrances, except party-wall rights of an adjoining owner,” etc.</p> <p>When on or about October 21, 1921, the premises were struck off to plaintiff’s assignor there was no tax on the property but on November 21, 1921, when the deed was to have been delivered, taxes for the second half of 1921 were a lien on the premises. Upon the claim that they were not liens at the time of the auction sale defendant refused to pay such taxes on the ground that he was not under obligations to discharge them. Under protest plaintiff paid the purchase money and accepted a deed and brought an action to recover the amount expended by him in discharge of said lien for taxes. Held, that the ' title given, burdened as.it was with the lien of the taxes for the second half of 1921, was not in accordance with the contract and that plaintiff was entitled to recover.</p> <p>A judgment in favor of defendant reversed, with costs, and judgment directed in favor of plaintiff for the full amount demanded, with interest and costs in the court below.</p>

Appeal by plaintiff from judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of defendant and against plaintiff dismissing complaint.

Appeal by defendant from order of the City Court of the city of New York granting plaintiff’s motion to consolidate this action with an action brought by the defendant against the plaintiff herein in the Municipal Court of the city of New York.

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

<p>Appeal by defendants from a judgment of the City Court of the city of New York entered in favor of plaintiff and from an order denying defendants’ motion for a new trial..</p>

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

<p>Injunction — when facts do not show unfair competition — sales by plaintiff not due to trade mark or source of origin — dissimilar articles.</p> <p>Plaintiff for many years has manufactured and sold a compass and divider protected by letters patent which have now expired. Defendant is now importing and selling a compass and divider which contains all the essential features of plaintiff’s article. The appearance of both articles is notably similar so that a casual and perhaps even a careful purchaser might not notice minor differences between them. The plaintiff’s article has been sold in containers showing the manufacturer, whose name is pressed on the article, about which there is nothing else which in any way suggests a trade mark or source of origin. The defendant’s article was sold without container or name of manufacturer. Held, that there being nothing in the moving papers to suggest that plaintiff’s article has been sold in any part because of its source as distinct from its utility or neat appearance, which fact alone would be sufficient to justify the refusal of an injunction, but further there being nothing in the use of the non-essential or ornamental features of defendant’s article to suggest to the public that it is manufactured by plaintiff, a motion by plaintiff for an injunction will be denied.</p>

<p>Health — resolution of board of health of city of Lockport that only grade “A” milk should be sold is authorized by the charter and is reasonable and not unconstitutional — such resolution must be passed by a majority of the whole board — injunction — Public Health Law, § 20.</p> <p>In an action to enjoin the city of Lockport from enforcing a resolution of its board of health to the effect that no milk other than certified grade “ A ” raw and grade “ A ” pasteurized be offered for sale in the city after a specified future date, held, that the board of health under the city charter (Laws of 1911, chap. 870, § 312) is authorized to pass such a resolution, and the same was-both reasonable and constitutional.</p> <p>Where the five members of the board of health which passed said resolution, other than the mayor, one member having resigned, were all nominated by the mayor in communications to the common council duly assembled, each communication being entered in the official minutes, read to and approved by the common council, there was a sufficient “ appointment by the common council ” of said board of health under section 20 of the Public Health Law.</p> <p>Under section 41 of the General Construction Law the board of health at the time of the adoption of the resolution was lawfully composed of six members, including the mayor. Held, that four affirmative votes were required to legally pass the resolution and that its adoption by a three to one vote was ineffective.</p> <p>An injunction pendente lite continued, and a motion to dismiss the complaint denied, with costs.</p>

<p>Injunction — suit for accounting of executors and trustees brought in Supreme Court — when court will enjoin prosecution of proceeding in Surrogate’s Court by one of the defendants as to rights which can be disposed of in Supreme Court suit — amendment of answer permitted.</p> <p>The Supreme Court, when all the parties interested in an action for an accounting by testamentary trustees are before it, may direct, control and restrain the acts of any trustee or any other party to the action and may punish as for a contempt any disobedience of its mandate.</p> <p>A proper case being presented the court has power pending such an action to restrain one of the parties thereto from prosecuting a proceeding in the Surrogate’s Court to obtain a decree directing the testamentary trustees to pay him a certain sum from the estate.</p> <p>Where the motion for an injunction is made by a defendant who by his answer praying for affirmative relief is brought within section 720 of the Code of Civil Procedure and section 824 of the Civil Practice Act, which in effect provide that such a defendant is deemed a plaintiff and the plaintiff in the action is deemed a defendant for the purposes of giving him provisional remedies, the technical objection that no injunction could be granted unless the motion therefor is made by the plaintiff cannot prevail.</p> <p>Such an objection is also met where after service of the motion papers on all parties to the action one of the plaintiffs, who is also one of the testamentary trustees, through her counsel, joins in the motion for the injunction giving reasons why it should be granted.</p> <p>Due and timely service of the amended answer of the defendant Who moved for the injunction having been admitted by all parties, including the one who instituted the proceeding in the Surrogate’s Court, to which only the testamentary trustees have been made parties, and who is both a plaintiff trustee and a defendant individually and as receiver, it follows that affirmative relief is asked against him also as an individual, and a stipulation having been entered into by the attorneys for all parties that said amended answer should be deemed to entitle said answering defendant to such relief as under the facts and the law he may be entitled to, such objection to the granting of the injunction should not be urged on the ground that said answer was not in terms broad enough to cover the relief sought.</p> <p>It being evident under the pleadings that any and all questions relating to the prospective rights, interests and claims of all parties relative to the estate can and should be passed upon by the Supreme Court, it having first acquired jurisdiction over the entire subject-matter of the action, and of all the parties interested therein, the motion for the injunction will be granted.</p> <p>If, however, the individual answer to the complaint interposed by the one who instituted the proceeding in the Surrogate’s Court should be deemed insufficient, it may be so amended as to distinctly raise the same question that he seeks to have determined by the Surrogate’s Court, especially as all parties to the motion for the injunction have expressly stated that they have no objection to his seeking in the action such relief as he deems himself entitled to, and accordingly the order to be entered on granting the motion for the injunction will provide that he shall have leave to amend his answer or make such other application for relief as he may be advised.</p>

<p>Action to annul a marriage.</p>

<p>Motion to confirm the report of a referee in certiorari to review an assessment.</p>

<p>Insurance — war risk insurance — attempt to name as beneficiaries persons not within the act — when proceeds will be impressed with a trust in favor of those legally entitled thereto.</p> <p>The purpose of the War Risk Insurance Act is to provide protection for relatives of soldiers and sailors within prescribed limits to the exclusion of all other persons. Decedent upon taking out a policy of life insurance under the War Risk Insurance Act gave to his brother, one of the defendants, who at the time was his only relative then residing in the United States who came within the class of persons permitted by said act to be named as beneficiaries and to receive such insurance, the names of certain persons who were to share proportionately in the proceeds of the policy, some of whom were not within the class prescribed by the act. Held, that the trust attempted to be created for the benefit of those not within the class prescribed by the act, and in violation of its purpose, was illegal.</p> <p>It appearing in a suit to impress a trust upon the proceeds of the policy that defendant had recognized the claims of those not within the statute, to share in the subject-matter of the attempted trust, the court will not permit the defendant to retain said proceeds but will declare a trust therein in favor of those legally entitled thereto under the act.</p>

<p>Summons — when personal service without the state is completed — rule 61, Rules of Civil Practice.</p> <p>Where in lieu of publication of a summons under section 233 of the Civil Practice Act, service upon a defendant is made without the state, the service is complete under rule 51 of the Rules of Civil Practice ten days after the filing of proof of service.</p> <p>The omission of a direction from both the Civil Practice Act and the Rules of Civil Practice with respect to proof of service without the state, without an order that it shall be deemed complete ten days after proof of service filed, makes it evident that proof of service of a summons without the state, without an order, is deemed complete upon actual service of the summons outside the state.</p>

<p>Transfer tax — non-resident decedent —■ when interest of deceased wife in estate of her deceased husband is not taxable.</p> <p>Where it appears that not until many months after the death of the decedent herein, a non-resident, who left no taxable property, was there any distribution of the assets of her deceased husband’s estate, the value of her interest in the estate of her deceased husband is not taxable under section 220(2) of the Tax Law, and the application to have the same declared exempt from a transfer tax will be granted.</p>

<p>Transfer tax — non-resident decedent — estate partly taxable in New York — prorating debts — no discrimation as between taxable realty and taxable personalty.</p> <p>The Tax Law does not fix different rates upon nor discriminate between taxable realty and taxable personal property and the total value of a transfer must be the same regardless of the nature of the property transferred.</p> <p>The policy of our courts has been to seek a method of computation which fairly taxes the value of the transfer of the taxable property in New York and the exclusion of the taxable real estate in fixing the ratio unfairly diminishes the proportionate amount of deductions and ignores the real net value of the transfer upon which the tax is ultimately assessed.</p> <p>Where the New York personalty left by a non-resident decedent exceeds the amount of his debts to resident creditors, the residue of his estate which passes under his will as a whole, and consists of mingled realty and personalty, is subject to a transfer tax upon its pecuniary value.</p> <p>In prorating debts under section 220(3) of the Tax Law each item of the estate, taxable personalty, non-taxable personalty and taxable realty, excluding specific legacies, must be deemed to bear its share of the debts.</p> <p>The deductions for debts due New York creditors should be prorated in the ratio that the value of all the taxable property in this state bears to the value of the gross estate, taxable and non-taxable, including realty in this state, but excluding property within the state specifically bequeathed.</p> <p>An appeal from an order fixing a transfer tax sustained on the ground that by the method adopted by the appraiser in computing the ratio by excluding the real estate, the tax had been greatly increased.</p>

<p>Application to send will, refused probate, to foreign jurisdiction.</p>

<p>Proceeding for settlement of accounts and construction of a will.</p>

<p>Claims against state — when payment on account does not revive barred claim — necessity of audit and determination by comptroller.</p> <p>A payment by the state in order to revive a claim already barred must have been made on account of such debt and a mere naked payment without anything to show on what account or for what reason the money was paid is of no avail.</p> <p>Claimants in the performance of a contract for the construction of locks 2 and 7 of the improved Oswego canal equipped them with power plants and other machinery and established that various acts of the state’s engineers were in breach of the contract and resulted in extra work and loss. All the breaches of the contract by the state’s engineers occurred more than six months before June 26, 1916, when the notice of intention was filed and the only acts or occurrences which transpired within that period were the execution by claimant of the receipt of a draft made by the superintendent of public works on the comptroller and the indorsement and deposit of the draft in bank, and its presentation to and payment by the comptroller on January 4, 1916. Held, that the claim never having been audited or rejected in whole or in part within the statutory period by the comptroller, who under section 4 of the State Finance Law is the auditing officer, the court has no jurisdiction and the claim will be dismissed.</p>

<p>Claims against state — premises leased by industrial commission but vacated before end of term — failure to give due notice of intention — rejection of claim by comptroller prerequisite to starting action.</p> <p>A lease by claimant of premises in the city of New York to the state for a term beginning July 1, 1919, and ending February 1, 1921, at a stipulated annual rental payable in equal installments in advance on the first day of each month during the term, contained no covenant of defeasance. The premises were occupied by the state industrial commission up to and including a part of the month of April, 1920, and the rent for that month was paid. An ofíer of one of the industrial commissioners, made on or about April 6, 1920, to surrender the lease was refused by claimant who on or about the twenty-eighth of that month was notified by letter from the same commissioner that the state had vacated the premises and that claimant was at liberty to let them on the best terms and conditions obtainable on such tenancy as might be desired. After April, 1920, claimant each month during the remainder of the term of the lease forwarded to the industrial commission a bill for the rent due for that month, none of which bills were paid. On or about March 16,1921, a representative of claimant called at the office of the state comptroller and upon informing one of the deputy comptrollers that claimant had a claim against the state for nine months’ rent because of its breach of the lease, he was told that the comptroller had no jurisdiction in the matter and that the claim should be filed with the trustees of public buildings with whom the lease was made. The next day claimant presented to the executive auditor of said trustees a claim for nine months’ rent which was not paid. On June 23, 1921, claimant filed notice of intention and about a month later filed the claim herein. Held, that the only breach by the state was its breach of the covenant to pay the specified rent at the time provided, which was a breach recurring on the first day of every month during the term of the lease subsequent to April 30, 1920; therefore, as to all installments of rent which became due and payable prior to December 23, 1920, or more than six months prior to the filing of the notice of intention, the court had no jurisdiction to make an award, and a motion to dismiss the claim on that ground will be granted.</p> <p>The rent payable under the lease being an expense of the industrial commission under section 44 of the Labor Law, a motion to dismiss the whole claim on the ground that it was founded upon an express contract and that no part thereof had been rejected by the comptroller will be granted, as in order to confer jurisdiction upon this court to determine the claim it must first have been rejected by the comptroller.</p> <p>A contention that the presentation of monthly bills to the industrial commission, the conversation between claimants’ representative and the deputy comptroller, and the presentation of the claim to the trustees of public buildings, coupled with the non-payment of the claim, constitute a sufficient rejection of the ' claim under the statute to confer jurisdiction upon this court, is untenable and is no answer to the motion to dismiss.</p>

<p>Claims against state — title to real property — possible adverse claimants — when comptroller will not be directed to deposit an award to a special account —• proceedings reopened to bring in other claimants.</p> <p>Where an award is based upon findings which do not include any finding that there are possible adverse and conflicting claimants, a motion by the attorney-general for an order directing the state comptroller to deposit the amount of the award in a special account to be distributed to those entitled thereto by order of the Supreme Court, must be denied.</p> <p>Before such an order may be entered the findings must be modified, not upon affidavit but only upon proof.</p> <p>Pending an examination of the title, the entry of judgment upon an award was suspended and the executor of the successful claimant was substituted in his place and stead. Thereafter the claim of another person, so far as it related to or covered any land affected by and described in the claim on which the award was made, was dismissed by a stipulation. Affidavits submitted upon a motion by the attorney-general for an order directing the state comptroller to deposit the amount, of the award in a special account in bank disclosed that an examination of the title brought to light possible claims adverse to and conflicting with those of the claimant herein. Held, that while the motion must be denied, an order may be entered setting aside the award and reopening the proceeding for the purpose of bringing in the adverse and conflicting claimants, who had been served with notice of the appropriation of the lands in question, and for a rehearing of the claim.</p>

<p>Claims against state — limited liability for rent under lease — failure of appropriation.</p> <p>Under section 3(7) of the Public Buildings Law which declares that each lease executed by the trustees of public buildings shall “ contain a clause that the contract of the state thereunder shall be deemed executory only to the extent of the moneys available ” and that “ no liability shall be incurred by the state beyond the money available for the purpose,” the power of the trustees to charge the state with liability under such a lease is limited to the moneys available by appropriation for payment of the rent falling due under the lease, and the lessor is chargeable with notice of such limitation.</p> <p>The failure to include such statutory clause in a lease entered into between the trustees of public buildings of the state and the claimant’s assignor did not render the lease void, neither did the omission have the effect of removing the statutory limitation upon the liability of the state or of enlarging such liability in any way.</p> <p>The liability of the state for rent falling due under the lease being limited by law to the moneys available for that purpose, and none having been made available by the segregation of the funds appropriated by chapter 340 of the Laws of 1921, the motion to dismiss the claim will be granted.</p>

<p>Application ex parte for revocation of parole after conviction and for authority to arrest.</p>

<p>Action for partition.</p>

<p>Application for an order awarding a contract to lowest bidder.</p>

<p>Action on construction and surety contract.</p>

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

<p>Motions by defendant to dismiss complaints.</p>

<p>Judgments — negotiable instruments — judgment against foreign bank — service by publication — laches in making application to open default — when proposed answer insufficient to justify granting of motion.</p> <p>A negotiable certificate of deposit made by the defendant, a bank at Aliceville, in Alabama, was, before maturity, negotiated and delivered by the payee to a bank in Wisconsin for value. This bank presented the certificate for payment to the defendant bank, payment was refused and the paper went to protest. By several assignments for value plaintiff became the owner and holder of the certificate after maturity. Funds of the defendant in the hands of a bank in the city of New York were duly attached, and thereafter, the defendant not having appeared in the action to recover on the certificate, a copy of the summons and of the complaint with an order for publication, the usual statutory requirements having been complied with, together with the attachment papers, were mailed to defendant at Aliceville, Ala. A judgment in plaintiff’s favor was taken by default and a copy of the order directing the entry of said judgment was served upon the bank in which were the attached funds of defendant. Held, that a motion to open the default and for leave to serve an answer made over six months after the entry of the judgment and over eleven months after the attachment, will be denied, it being doubtful, even if the default were opened, whether defendant will be entitled to any relief under its proposed answer, the separate defense pleaded therein being based upon the claim that the aking of the certificate by plaintiff after maturity was ubjeet to any informality arising out of an alleged fraudulent transaction of the original payee in securing the certificate with intent to defraud and deceive defendant by pretending to sell certain real property to one of its officers.</p> <p>A proposed defense that defendant refused payment of the certificate for the reason that there was a bill of complaint filed against it and that payment would be held up pending action by the court, was untenable.</p>

<p>Corporations — dissolution of defendant pending action — distribution of assets among directors — practice — when directors will be joined in action as parties defendant — supplemental summons.</p> <p>The assets of a corporation are a trust fund for the payment of its debts upon which the creditors have an equitable lien both as against stockholders and all transferees except those purchasing in good faith and for value.</p> <p>Ordinarily a creditor must exhaust his remedy at law by obtaining judgment against the corporation and the return of an execution nulla bona, but when by the act of the corporation or for any other cause it is impossible for the creditor to obtain such a judgment the creditor may sue the directors even if no such judgment has been obtained.</p> <p>In general, an action may be brought against the corporation independent of its dissolution, yet where it has disposed of all its property without paying its debts, etc., and has discontinued operation, it would be a waste of time to sue and have execution returned unsatisfied and then proceed against the directors.</p> <p>An action for debt may be continued against the directors of a corporation dissolved during the pendency of the action.</p> <p>In an action to recover damages for breach of a contract for the sale of lumber, the complaint alleged a tender of the lumber by plaintiff, a foreign corporation, in accordance with the contract, and the refusal of defendant, a domestic corporation, to accept or pay for the same; notification to defendant that it would be held for any loss; due effort to sell at the best price obtainable and failure to sell. The answer alleged that after the commencement of the action defendant was dissolved and from defendant’s examination before trial it not only appeared that there was no attempt to ascertain or pay its liabilities but that assets were distributed amongst its directors, who were the sole stockholders. No notice of the dissolution was given to plaintiff nor was any provision made by defendant or its directors for plaintiff’s claim. Held, that an order bringing in and joining as parties defendant certain named officers and directors of the defendant and for the issuance of a supplemental summons with leave to serve the amended and supplemental complaint annexed to the motion papers, will be granted.</p> <p>Under sections 35 and 221 of the General Corporation Law the court is permitted to allow the relief asked, as any continuance of the action against the defendant alone would be futile.</p>

<p>Churches — expulsion of member from Christian Science chxirch — proper by-law — power of trustees of religious corporation — Religious Corporations Law, § 6. . «</p> <p>The proper church judicatory of an ecclesiastical body in which one holds membership and under whose tutelage one exercises religious functions is the proper forum for determination of questions affecting the objects and interests of the moral and spiritual side of ecclesiastical discipline.</p> <p>Plaintiff was expelled from membership in the First Church of Christ, Scientist, New York city, pursuant to a by-law adopted in October, 1921, and reading as follows: “Any member of this church who is found, after a hearing, to be a loyal student, follower, supporter or adherent of one who has been expelled from membership in the mother church by the Christian Science board of directors may be dropped from membership in the church by a two-thirds vote of the board of trustees. * * * Under this section of the by-laws no admonition shall be necessary.” The complaint in an action against the church and its trustees to compel plaintiff’s restoration to membership alleged that the procurement of the passage of said by-law was not in good faith but was a mere subterfuge upon which to predicate charges of conduct not theretofore deemed as prejudicial to the church, and that said by-law, because of its retroactive and ex post facto features so far as his conduct was concerned, was void and of no effect. Held, that said by-law was fully authorized by section 5 of the Religious Corporations Law, was adapted to a proper restraint of the orthodoxy of plaintiff, whose relations, rights and obligations as a member of the defendant may only be determined according to the by-laws and procedure enacted by defendant, and its motion for judgment on the pleadings will be granted.</p>

Application on return of an order to show cause for an order directing the filing of the oath of office of George J. Yakel, as one of the policemen of the village of Green Island, Albany county, New York, with the police board of that village, as of March 4, 1922.

<p>Wills — bequest to lodge of Odd Fellows — surviving widow — gift valid only to extent of one-half estate.</p> <p>Cornwall Lodge No. 340 I. O. 0. F. of Cornwall-on-Hudson, duly incorporated under the laws of this state, is both a “ benevolent ” and a “ charitable ” corporation, within the meaning of those words as used in section 17 of the Decedent Estate Law.</p> <p>Where, therefore, testator, who left him surviving his widow, devised and bequeathed all his property to said lodge, to be used toward the erection of an Odd Fellows’ hall, the gift is valid only to the extent of one-half of the estate after payment of the testator’s debts, if any.</p>

<p>Landlord and tenant — when Emergency Rent Laws are not a. good defense in an action for rent founded on a special agreement.</p> <p>In consideration of the discontinuance of an action to recover an increased rental from defendant prior to May 18, 1921, the defendant agreed to pay for the use and occupation of the premises then occupied by him as the tenant of plaintiff, a certain sum on October 1, 1921, and a like sum on the first day of each month thereafter, but on demand refused to make any of such payments. Held, that in an action upon the special agreement the defendant was not entitled to invoke the aid of the Emergency Rent Laws, by a plea that said agreement and the rent demanded were unjust, unreasonable and oppressive; nor was he entitled to a bill of particulars as required by that legislation.</p>

<p>Proceeding to compel an accounting.</p>

<p>Contracts — conditions imposed by government while operating railroads in regard to towage contracts — letters of plaintiff refusing conditions ineffective when he later accepts towage — when conditions inure to benefit of railroad company after return of roads.</p> <p>The United States railroad administration wrote plaintiff, a lighterage an< transportation corporation, three letters (September 2, 1918, June 9, 1919, and June 18, 1919) all substantially to the same effect, stating the conditions under which it would accept boats for tow, and the plaintiff wrote as many replies refusing in each instance to agree to the conditions named, which, by the terms of all the letters of the said railroad administration applied to all work accepted and performed by the tugs owned, employed or chartered by the defendant, and were as follows: “All towing is done at the risk of the tow. Neither we nor the tugs employed in the service nor the owners shall be responsible for any damage done to the tow through negligence, and the masters and crews of tugs in the performance of the towage service shall become the servants of, and identified with the vessel or the craft towed, whether singly or with other vessels owned by you and in possession of charterers, and to the shifting of vessels in and around piers and in slips.” Nearly a year after the last letter of said railroad administration to plaintiff, one of his barges, while being towed by one of defendant’s tugs pursuant to an oral order given by plaintiff, was damaged through the negligence of those in charge of the tug. Upon directing judgment for the dismissal of the complaint upon the merits in an action for damages, held:</p> <p>The railroad administration had the right to impose the conditions named in its letters and the plaintiff not having made his refusal to agree to said conditions a part of his order to defendant to tow the barge, is presumed to have accepted the conditions and to have waived his objections thereto.</p> <p>The notice contained in the administration’s letter of June 9, 1919, was one of the “ regulations and practices ” referred to and continued in effect by section 208(a) of the Transportation Act of February 28, 1920, and inured to the benefit of the defendant and was available as a defense to the action, and the legal effect of said letter was not destroyed by the letter of plaintiff in reply thereto.</p>

<p>Municipal corporations — the city of New York cannot maintain bus lines — injunction — when operation of buses a waste of public funds which will be restrained on application of taxpayer.</p> <p>The board of estimate and apportionment of the city of New York by a vote of all its members in March, 1922, adopted a resolution authorizing the commissioner of plant and structures to arrange for the necessary motor vehicles and to operate or to regulate and supervise the operation of the same along certain described routes including the Sixty-fifth street crosstown line at a rate of fare not exceeding five cents. Pursuant to said resolution there was established a crosstown line of five or six motor buses on said street running from Avenue A on the east, through said street and Central Park, and then by Sixty-sixth and other streets to West End avenue, and returning by the same route. The motor buses having conspicuous signs thereon reading: “ City of New York, Department of Plant and Structures, Avenue A to Sixty-sixth Street and West End Avenue, Fare 5 Cents,” though owned by private individuals to whom permission to run over the route is given in the form of a “ starter’s card,” are run under the supervision and inspection of the commissioner of plant and structures and on schedules fixed by him. In a taxpayer’s action by a competing street railroad corporation to restrain the city from operating the motor bus line on Sixty-fifth street there was neither claim nor proof that the buses take the place of any abandoned line in or near said street. It further appeared that none of the positive provisions of the city charter, of the Transportation Corporations Law, or of the Public Service Commission Law had been complied with by the city or by its board of estimate and apportionment or by any of the defendant owners of the buses in question. Held, that a motion for an injunction pendente lite will be granted.</p> <p>While the transit commission in connection with any plan of readjustment for the relief of traffic emergency was by section 108 of the Transit Act of 1921 given authority to make contracts for the use of streets for stage and omnibus routes, the legislature at the same session also, and at three other sessions including that of 1922, refused to pass a bill, urged in behalf of the city, to so amend the city charter as to give power to the board of estimate and apportionment to authorize and establish motor bus routes over any of the streets and parkways of the city and the operation thereof by the city without the consent or action of any other board or body. Held, that intention and purpose, so manifested, conclusively show that neither the city nor any one of its constituted authorities has any power to attempt to relieve a so-called emergency which is neither sudden nor unexpected, but may be better described as a deplorable chronic condition in the transit situation.</p> <p>The cost of operation to the city is not only a waste of public money but is a clear violation of the constitutional provision (Const. art. VIII, § 10) that no city shall give or loan money or credit to or in aid of any individual or corporation, nor shall any city incur any indebtedness except for city purposes.</p> <p>The proposed new line at Sixty-fifth street, which gives no transfers, is parallel with the Fifty-ninth street crosstown line of the plaintiff, and the claim by the city that the new line has become necessary because of the elimination of certain transfers by plaintiff on its crosstown line, tends to show that it is a competing line in spite of the city’s contention to the contrary.</p>

<p>Practice — demand for admission of facts by adversary — motion to strike out demand — to what extent granted — sale of goods — Civil Practice Act, § 323.</p> <p>The purpose of section 323 of the Civil Practice Act which provides only for a demand for an admission of facts which one’s adversary has not denied in any shape or form and which are known to him or the truth or falsity of which is easily ascertained by him but without much trouble or expense and without basing them upon opinion, is to simplify the issues, shorten the trial and save time and expense in matters that can be proven, but proof of which will necessarily impose labor and expense on the party seeking to prove them, which in justice should never be imposed.</p> <p>Said section was never intended to do other than provide for admissions for a useful purpose, and unless carefully applied will open a way for some to place upon an opponent the burden and expense necessary to prove their own case.</p> <p>When the codifiers formulated section 1569 of the Civil Practice Act, which provides an exception to the general rule contained in section 1568 of the act to the effect that when the best interests of justice will be served the court in its discretion may apply any remedial provision of the act which is not inconsistent with the proceedings theretofore had, they had in mind section 323 of said act.</p> <p>In an action in which issue was joined prior to October 1,1921, to recover damages for defendant’s refusal to accept and pay for a certain number of reels of wire purchased by plaintiff for defendant on its order under an agreement to pay therefor certain stipulated prices, the answer consisted of a general denial and several counterclaims based on breaches of contract for failure to deliver on time and breaches of warranty and the reply denied the counterclaims and interposed separate defenses thereto. Held, that a motion to strike out a notice and demand made by defendant under section 323 of the Civil Practice Act, for the admission of certain facts, will be granted only in part, i. e., all demands calling for questions of opinion, all that are not definitely ascertainable by plaintiff, all that call for “ half a fact ” and all that would be inadmissible as evidence at the trial, will be stricken out.</p>

<p>Motions for summary judgments.</p>

<p>Motion to vacate a preliminary injunction.</p>

<p>Return of writ of habeas corpus.</p>

<p>Navigable waters — action to set aside letters patent to lands under water — failure to show fraud — mistake of law by former state officers — limitation of action — possession by grantee for over forty years — when verdict directed for defendants.</p> <p>In deeds of conveyance from Van D. to S. of lands “ fronting on the bay of Hudson’s river ” they were described as bounded in front “ by the public highway.” Between said lands and the high-water mark there was a strip to which S. and his predecessors had only a perpetual easement of use for their own purposes, the right to maintain a public ferry being expressly excluded. After the death of Van D. the representatives of his estate made application for a gram of land under water in front of the Van D. property, but expressly excepting from such application the lands under water in front of the S. premises and the letters patent were so granted. In 1823, when letters patent were issued to S. for a grant of land under water in front of the strip of land to which he did not own the fee, a statute then in force (Laws of 1815, chap. 199) declared that no such grant should be made to any other than the “ proprietor ” of the adjacent lands. Upon granting a motion for the direction of a verdict in favor of defendant in an action to set aside the letters patent issued in 1823, held, that the acts of the representatives of the Van D. estate in making their application did not strengthen the title of S.; he still held only an easement.</p> <p>The facts in respect to what title S. had having been fully set forth before the commissioners of the land office and the then attorney-general who was one of the commissioners having had the same information with reference to the title as the present attorney-general who seeks to maintain this action ninety-eight years after the issuance of the letters patent to S. it must be held that there was but an error of law or mistake of law on the part of the state’s officers.</p> <p>The limitation of forty years fixed by section 362 of the Code of Civil Procedure was a complete bar to the action to revoke the letters patent on the ground of fraud.</p> <p>The issuance of the letters patent to S. in 1823 was at best only voidable and under section 368 of the Code of Civil Procedure the premises are presumed to have been in his possession within the time required by law.</p> <p>Letters patent were issued by the state in 1898 upon an application by defendant setting forth that it was the owner and in possession of the property comprised in the S. patent as well as of other lands and patents along that shore. Held, that there was an acquiescence in and recognition by the state of the claim of title based upon the patent issued to S. in 1823.</p>

<p>Claim for injuries sustained on highway.</p>

<p>Claims against state — services rendered as a detective — investigation of murder case resulting in pardoning of convict — alleged request from governor — when statute too restricted to permit recovery.</p> <p>In June, 1916, claimant’s intestate, who for many years was a police detective of the city of Buffalo, was conducting a private detective agency in that city. After affirmance by the Court of Appeals of a judgment of conviction in a capital case the then governor of the state primarily and almost entirely as the result of the efforts and skill of claimant’s intestate first commuted the sentence to life imprisonment, then to the period the convict had served, and finally on November 28, 1918, pardoned and restored him to citizenship. Under a statute (Laws of 1920, chap. 321) conferring jurisdiction upon this court to hear and determine the claim for services alleged to have been rendered the state by claimant’s intestate as a detective in investigating the said capital ease, and authorizing the court to award and render judgment for such sum as might be found due, a claim for all the services and disbursements of claimant’s intestate throughout his investigation, except those for which he received pay from sources other than the state, was filed with the Court of Claims within the time prescribed by said statute which also provided that nothing therein should be held as admitting liability for such claim or any part thereof on the part of the state, or as waiving any defense thereto. Upon the hearing the court found as a fact that claimant’s intestate did not receive any assurance or promise of payment or reimbursement from the governor before the date of the pardon, and that such services as had been previously rendered were either voluntary or for one or more of the various persons who were interested in the exculpation of the one convicted of murder in the first degree. Held, that assuming that such services were rendered at the request or by agreement with the then governor of the state, the language of the statute upon which the claim was predicated was too restricted and limited to permit a recovery for any of the services alleged, and the claim will be dismissed.</p> <p>Tile court also found as facts that after the pardon was granted the governor requested the claimant’s intestate to procure certain evidence vindicatory of the governor’s action in the matter, and that such services, if any, rendered after the date of the pardon were pursuant to the arrangement with the governor, but there was no proof of the nature, extent or value of such services or disbursements.</p>

<p>Motion for an order requiring the sheriff of Oneida county to return to the claimant one truck which had been seized upon a claim that it was engaged in the illegal transportation of intoxicating liquor.</p>

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

<p>Action by a creditor of a bankrupt firm, to obtain a preference.</p>

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

<p>Carriers — no recovery for storage charges of property “stored” on public street.</p> <p>A carrier under a bill of lading and the tariff schedules filed with the interstate commerce commission is not entitled to recover storage charges except when the merchandise is stored “in or on railroad premises,” and upon proof that it was stored in the public street judgment will be given in favor of defendant.</p> <p>The court will take judicial notice that the marginal way or farm which lies between the westerly side of West street and the North river is a part of the public streets of the city of New York.</p>

<p>Action to recover on a note.</p>

<p>Vendor and purchaser — marketable title to real estate — contract entered into prior to April 1, 1920 — the holding over of a former tenant under a stay in summary proceedings is not such an incumbrance as renders the title unmarketable — dismissal of complaint of vendee of premises to recover his down payment.</p> <p>Defendant, the owner of certain real property in the city of New York, upon which was a building containing three apartments, on January 24, 1920, entered into a contract to convey said premises to plaintiff subject to two leases of two flats expiring about November, 1920, but a third tenant in occupation of the other apartment, whose lease was to expire on April 1, 1920, the day before the date fixed for the closing of title, was not mentioned in said contract. The statute (Laws of 1920, chap. 137) authorizing a judge sitting in a summary proceeding against a tenant holding over after the expiration of his term, in his discretion and upon certain conditions to stay the execution of a warrant upon granting a final order in favor of the landlord, for any period not exceeding one year, went into effect April 1, 1920. The tenant whose lease expired on that day not having vacated his apartment the closing of title was adjourned eventually until April 13, 1920, and though in the meantime summary proceedings were instituted against him the execution of the warrant issued upon a final order awarding possession of the apartment to the defendant herein was stayed until May 1, 1920. On April 13, 1920, the parties herein met and defendant under his contract to convey duly tendered a deed of the premises, which plaintiff refused to accept on the ground of an alleged incumbrance resulting from the occupancy of the tenant who had been dispossessed. In an action by the vendee to recover from the vendor the amount of the deposit made under the contract and the expenses of an examination of the title, on the ground that the title tendered was unmarketable,' held, that the tenant who had been dispossessed, although obliged to pay for the use and occupation of a part of the premises during the continuance of the stay, was not, strictly speaking, a tenant, because the relation between him and the defendant was created by law and not by contract.</p> <p>The statute (Laws of 1920, chap. 137), which in the exercise of the police power was enacted to meet a special and peculiar emergency, did not create an incumbrance on the property but merely modified, in certain respects, the existing statutory remedy of summary proceedings which could have been taken away altogether without impairing the marketability of plaintiff’s title.</p> <p>In the circumstances there was no such incumbrance not specified in the contract which relieved the plaintiff of his obligation to perform, the same, and a judgment in favor of defendant for the dismissal of the complaint upon the merits will be granted, but without costs.</p>

<p>Proceeding to probate a lost will.</p>

<p>Wills — provision that surviving executors and trustees may appoint successors in case of vacancy — trustee appointed by Supreme Court cannot act as executor — proof of designation of executor by sole surviving executor — limited powers of successor trustee and executor after death of all original executors, to fill vacancies.</p> <p>Upon the probate of the will of Governor Samuel J. Tilden, letters testamentary were issued to George W. Smith, John H. Bigelow and Andrew H. Green, the persons originally named as executors. The 6th clause of the will provided: “ In case of the death, resignation or incapacity of either of my said executors and trustees, the survivors of them shall immediately appoint a successor by an instrument in writing under their hands and seals and upon such appointment being made the person so appointed shall thereupon become and be invested with all the rights, power and authorities conferred by an executor and trustee hereby appointed.” And the 8th clause, while directing said executors to constitute for specific persons certain trusts to be held distinct and separate from the general trust created by the will, declared that the executors should be trustees of said special trusts, with power to manage the same, collect the income thereof, apply the same as by the will directed, to sell in their discretion the trust securities, and to invest the proceeds thereof. Upon the death of Mr. Green the surviving trustees, acting under the said 6th clause of the will, appointed a Mr. Randolph as successor executor, and his appointment having been duly authenticated by the surrogate, letters testamentary were issued to him. Upon the death of Mr. Bigelow the survivors were unable to agree, and upon application the Supreme Court appointed Charles F. MacLean as third trustee, but no appointment of a third executor was made, so that, at the date of that appointment, the special trusts were being administered by Mr. Randolph, Mr. Smith and Mr. MacLean, and the executorial duties were being performed by Mr. Smith and Mr. Randolph. Held, that whatever may have been the intent of the testator, yet by successive adjudications of the Supreme Court in three different actions resulting in judicial settlement of the accounts of the executors and of the trustees of the special trusts the intent of continuous identity of the persons who were executors to be the trustees of the trusts under the will had been interrupted and put an end to, so that just before the death of Mr. Smith, Mr. Randolph having resigned and thereafter died, he, Mr. Smith, was the sole surviving executor.</p> <p>Upon an application by Mr. MacLean for letters testamentary by virtue of his designation by an instrument in writing purporting to have been executed by Mr. Smith as sole surviving executor on February 18, 1919, pursuant to the authority contained in the 6th clause of the will, it appeared that although diligent search had been made for the original paper it could not be found. Held, that a copy thereof having been duly proved was effectual and that by virtue thereof Mr. MacLean became vested with the authority and powers of an executor under the will, and said copy will be deemed filed nunc pro tunc as of the date of the execution of the original, and letters testamentary may issue to Mr. MacLean, the sole surviving executor.</p> <p>Under the decree to be entered upon the present application said sole surviving executor will have no power to appoint successor executors who will have power as trustees save only in the special trusts of which he is now sole trustee, and in which the power to appoint a successor has not been taken up by either the Supreme Court or Surrogate’s Court, and remains undivested in the sole administering trustee but not in him as executor.</p> <p>There being no identity of the personnel of the executorship, or of any of the special trusts, the words “ my executors and trustees ” were merely intended by the testator as descriptio personce.</p>

<p>Executors and administrators — when husband not entitled to administer estate of divorced wife — failure to enter final decree in divorce.</p> <p>Under section 1176 of the Civil Practice Act the entry of a separate final judgment for divorce is not necessary.</p> <p>Where on the day after a judgment for absolute divorce against a wife became final she died, her former husband is not entitled to letters of administration upon her estate.</p>

Appeal by plaintiff from an order of the City Court of the city of New York, setting aside a verdict in his favor and from a judgment dismissing the complaint upon the merits.

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 without a jury.

Appeal by plaintiff from judgment of Municipal Court of the city of New York, borough of Manhattan, ninth district, dismissing the complaint, and awarding defendant the sum of twelve dollars and fifty cents costs.

<p>Appeal from an order of the Municipal Court of the city of New York, borough of Manhattan, seventh district, setting aside and vacating a judgment rendered in favor of the defendant.</p>

Appeal by the plaintiffs from a judgment rendered in the Municipal Court of the city of New York, borough of Manhattan, second district, dismissing the complaint at the close of plaintiffs’ case.

<p>Appeal from an order of the Municipal Court of the city of New York, borough of Manhattan, fifth district, in summary proceedings, granting landlord’s motion to strike out the affirmative defense contained in tenant’s answer as insufficient in law, and from a summary judgment granting a final order.</p>

Appeal by defendant from an order denying its motion to dismiss the complaint for failure of prosecution in the City Court of the city of New York.

<p>Practice — joinder of parties — Municipal Court of the city of New York — tenants of separate apartments in an apartment house may be joined in a single action for rent although separate judgments are demanded against each tenant — Civil Practice Act, §§ 209, 211-213 — Municipal Court Code, §§ 15, 27.</p> <p>By virtue of sections 15 and 27 of the Municipal Court Code, sections 209, 211-213 of the Civil Practice Act, taken bodily from the English Practice Act, apply to actions in the Municipal Court of the city of New York.</p> <p>While the Civil Practice Act does not permit a creditor to join in one action all or any number of his debtors, yet where claims against a number of debtors arise out of the same transaction or series of transactions and involve some question of law or fact common to them all, the creditor may bring a single action against all or any number of the debtors, and if, even in such a situation, a joinder would be prejudicial to the interests of any one involved, the court under section 209 of the statute has power to order separate trials.</p> <p>The complaint in an action brought in said court to recover the reasonable rental value for the use and occupation of certain apartments alleged that all of the seven defendants are tenants in the same house and that each occupies a separate apartment. While the reasonable rental value of each apartment was also alleged it was not the same as to each defendant and a separate judgment was demanded against each defendant for the reasonable value of the use and occupation of the apartment occupied by him. A motion by defendants, appearing specially, to dismiss the complaint was granted on the ground that the action would not lie, and the order entered recited that by consent of all parties the motion was determined solely upon the question whether, under sections 211 and 212 of the Civil Practice Act, a single action may be brought against all such tenants joined as defendants. Held, that the order, from which an appeal was allowed under section 154(7) of the Municipal Court Code, will be reversed, and a motion to dismiss the complaint denied, but without costs.</p>

<p>Action to determine title to real property and for an accounting.</p>

<p>Agricultural Law — meaning of “ cider vinegar ” and “ apple vinegar ” — sufficiency of complaint to recover penalty.</p> <p>The words “ cider vinegar ” and “ apple vinegar ” in section 70 of the Agricultural Law mean vinegar made from apple cider.</p> <p>The complaint in an action to recover a penalty for violation of the Agricultural Law alleged that defendant manufactured, sold and delivered to a purchaser named a barrel of vinegar; that one end of the said barrel contained the following words and figures: “Douglas Packing Co.— Excelsior Brand Apple Cider Vinegar. Made from selected apples — reduced to 4 per centum — Rochester, N. Y.” and that on the other end appeared the following words: “ Guaranteed to comply with all pure food laws. Douglas Packing Co., Rochester, N. Y.” It was further alleged that the vinegar contained in said barrel “ was not made exclusively from the pressed juices of apples by alcoholic and subsequent acetous fermentation as provided in section 70 of the Agricultural Law but was made from evaporated skins and cores of apples and evaporated chopped apples,” and that the said barrel of vinegar was misbranded in that it did not contain apple cider vinegar and in that it was not branded with the kind of vinegar contained in it and the substance or substances from which it was made as provided by section 72 of the Agricultural Law. Held, that the complaint was sufficient under the statute and that a motion to dismiss it will be denied with leave to defendant to serve an answer.</p>

<p>• Suit in equity to set aside a conveyance and for damages.</p>

<p>Motion for peremptory mandamus to compel the register to record a deed.</p>

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

<p>Wills — trusts — when principal must be used for support of beneficiary although income from trust estate added to income from his separate property is sufficient for his support.</p> <p>About a year prior to the death of testatrix, then nearly eighty years of age, her son, who was an imbecile and paralytic and about forty-four years of age, was adjudged an incompetent and a committee of his person and property was appointed. About three months before testatrix died, she made a will by which all of her property was given to her executor in trust, with direction to pay the income therefrom to said son during life and at his death “ to pay the principal of my estate or so much thereof as may then remain ” to the minor children of the executor, who were strangers to the blood. The will further provided that “ If the income from my estate shall be insufficient for the proper support of my said son, then and in that event, I authorize and empower my said trustee to expend so much of the principal thereof as may be necessary for that purpose.” Held, that in an action by the committee against the executor and the remaindermen the plaintiff was entitled to judgment directing the executor to pay over to him out of the principal of the estate an amount equal to the difference between the cost of the support of the son since the death of his mother and the income received from her estate during that period, although such income and that received by the son from his separate property was more than sufficient for his proper support.</p>

<p>Action to foreclose a lien on personalty.</p>

<p>Appeal from a judgment in favor of the plaintiff entered in the Municipal Court, city of New York, first district, borough of Richmond.</p>

<p>Foreclosure — sale of real estate — tenants by the entirety — surplus constructively real property — wife abandoned by husband bidding in property may offset equity of redemption against purchase price — rights of each in property after sale.</p> <p>Where land owned by husband and wife as tenants by the entirety is sold under a mortgage foreclosure the surplus over the mortgage debt is constructively real property still held in entirety by both.</p> <p>Where at the time the decree of foreclosure and sale was granted the husband had abandoned his family, was under indictment therefor and was a fugitive from justice, and the wife acknowledges that she bid in the property and will still hold it as in entirety, her motion for leave to offset as against the purchase price the equity of redemption in the property will be granted in the absence of objection by a creditor of hers, if she has any.</p> <p>The husband still has his interest in the property contingent on his survivorship, and if after the death of his wife he reappears to assert his claim as survivor, her estate will have a claim against him, to be satisfied out of the property, for what she has expended for support.</p>

<p>Motion on behalf of the plaintiff for a new trial made upon the minutes of the court.</p>

<p>Carriers — stage coach corporation organized under Transportation Corporations Law in 1914 — rights granted under certificate of incorporation constitute a special franchise — an individual cannot maintain action against corporation declaring its rights forfeited for failure to exercise its franchise — such action only maintainable by the people of the state — corporation may resume operations under its franchise without complying with additional conditions prescribed by Transportation Corporations Law since its incorporation — permanent injunction denied.</p> <p>The defendant stage coach corporation was organized in 1914, under the Transportation Corporations Law at a time when section 25 thereof, as amended in 1913, declared that “ Any person or any corporation who or which owns or operates a stage route, or bus line wholly or partly upon or along a highway known as a state route or any road or highway constructed wholly or partly at the expense of the state * * * shall be deemed to be included within the meaning of the term ‘ common carrier,’ as used in the public service commissions law, and shall be required to obtain a certificate of convenience and necessity for the operation of the route proposed to be operated, and shall be subject to all the provisions of the said law applicable to common carriers.” The certificate of incorporation of said defendant stated that the route intended to be operated was over certain highways, including a highway connecting the village of Dolgeville with the city of Little Falls. Held, that the right granted to defendant by a certificate of incorporation constituted a special franchise.</p> <p>Pursuant to a certificate of convenience and necessity granted by the public service commission for the operation of auto buses over and upon a route connecting certain communities and along a state highway to the city of Little Falls and over certain streets therein, the stage coach corporation operated a bus until some time in 1916 when regular service was abandoned. The effect of an amendment (Laws of 1915, chap. 669) to section 25 of the Transportation Corporations Law was to strike out the provision with reference to state roads, and make every person or corporation operating a bus line or stage route wholly or partly along any street, avenue or public place in any city a common carrier and under the necessity of procuring a certificate of convenience and necessity from the public service commission; and section 26 which was added made it also necessary • to obtain the consent of the local authorities of the city over whose streets the line was operated in whole or in part.</p> <p>After the discontinuance of service by the defendant company the plaintiff procured from said city the necessary consent to use the part of the route within the city and from the public service commission a certificate of convenience and necessity. After plaintiff had become established in business the individual defendant, as a competitor, commenced the operation of a motor vehicle line, and while the city granted to him the necessary consent to the use of the street, the public service commission, upon the ground that the operation of another line was unnecessary, refused a certificate of convenience and necessity, but notwithstanding said individual defendant continued to operate his line until the service upon him of an injunction in another case, herewith decided. Held, upon dismissing the complaint, that an action to procure a judgment declaring forfeited the rights of the defendant corporation because of its cessation of business and failure to exercise its franchise rights, was not maintainable.</p> <p>Such a forfeiture can only be asserted in an action brought by the people of the state, not in a suit between third persons, and until such forfeiture is established by judgment, the corporation which had complied with all the conditions precedent to its operation of its franchise rights and had actually commenced the operation under its charter might again resume operation without complying with the additional condition precedent which had been added to the Transportation Corporations Law by the amendment of 1915, since the incorporation of the defendant corporation.</p>

<p>Suit for permanent injunction.</p>

<p>Crimes — rape — bill of particulars — district attorney will not be required to disclose evidence — particular dates when offenses were committed must, however, be furnished.</p>

<p>Action to compel an assignment of an interest in a patent for an invention.</p>

<p>Public health — city of Poughkeepsie — sale of milk, except Grade A raw and certified, may be prohibited, unless pasteurized.</p>

<p>Action for money had and received.</p>

<p>Mandamus — civil service — game protectors in Niagara county — suspension because of lack of appropriation — in what order suspensions should be made — one who has resigned and then been reinstated entitled to benefit of his first employment.</p>

<p>Landlord and tenant — lease — agreement that landlord might terminate lease if premises ceased to be used for sale of liquor — condition — National Prohibition Act — re-entry by landlord necessary to terminate lease — summary proceedings not maintainable.</p>

<p>Action in equity to determine the respective interests of the parties in a fund on deposit.</p>

<p>Benevolent associations — readmission to membership — right to participate in beneficiary fund — defects in procedure due to officers of local lodge who failed in duty enjoined by constitution of the association — estoppel to deny rights of readmitted member.</p>

Motion to vacate the service of the summons made on the defendant corporation, Erie Forge Company, without the state, pursuant to an order, and to vacate and set aside a warrant of attachment and all proceedings had thereunder.

<p>Trusts — spendthrift trust created by foreign will—foreign trustees — attempt of wife of cestui que trust to compel payment of alimony by trustees —- court has no jurisdiction of suit.</p>

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

<p>Claims against the state — cellar hole filled with water on land belonging to state near canal — no liability for drowning of boy playing in pool — mere licensee.</p>

Petitioner seeks to register title to real property situated at Great Neck in the town of North Hempstead, Nassau county, N. Y., in fee simple pursuant to the Real Property Law of the state of New York known as chapter 572 of the Laws of 1918.

<p>Motion by defendant for dismissal of action and for other relief.</p>

<p>Claims against state — consequential damages not subject of award — roiling of water in building of canal.</p>

<p>Application to vacate decree admitting will to probate.</p>

<p>Proceeding to probate a will.</p>

<p>Wills — demonstrative legacies — bequests payable from proceeds of sale of designated real estate — sale by testatrix before death — when legatees can resort to general estate — indefinite legacy void — sale of parcel of land specifically devised causes devise to lapse.</p>

<p>Proceeding to compel payment of a legacy.</p>

<p>Wills — construction of—when separate and distinct trust funds created — order in which securities are to be sold — investment of funds by executor.</p>