Volume 119 — New York Miscellaneous Reports

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

<p>Action to construe will.</p>

<p>Easements — right of way — rights of grantor —unreasonable interference.</p> <p>The grantor of a right of way of ingress and egress over Ms land has all the rights and benefits of ownership consistent with the easement.</p> <p>In a deed of conveyance to plaintiff he for himself and all persons having a lawful right to use the same was granted a right of way of ingress and egress over land of his grantor thirty feet in width running from a road to the property conveyed to satisfy the requirements thereof. Held, that a gate twelve and one-half feet wide at the entrance of the right of way was an unreasonable interference therewith, particularly where it was evident that the parties contemplated that eventually the right of way would be a portion of a city street.</p>

<p>Suit to set aside letters patent.</p>

<p>Letters patent — • lands under water — absolute failure to comply with conditions within limitation of time — expiration of patent — Jamaica bay — lands revert to state and not to city of New York — Laws of 1909, chap. 668 — Laws of 1912, chap. 522.</p> <p>Letters patent were granted on November 22, 1907, for the express and exclusive purpose “ to fill in the lands under water herein granted and to erect thereon a bulkhead and pier of a substantial character ” with provision that “ unless the improvements above named are completed within five years from the date of these presents this grant shall cease and determine and become null and void.” Held, that because of an absolute failure to comply with the conditions imposed, any interest which the grantee had in the patent, for which they had paid a valuable consideration, expired on November 22, 1912.</p> <p>The grant to the city of New York by section 1 of chapter 568 of the Laws of 1909 for specified purposes of “ such right, title and interest as the state of New York may have in and to the land under water in Jamaica Bay ” is expressly limited by the provision of section 2 of said statute that “ the grant shall not affect such land as may hereafter be granted by the commissioners of the land office under an application made prior to May 29, 1909, but if any such application be denied, the land covered thereby shall pass to the city of New York under the conditions of this act.” Chapter 522 of the Laws of 1912 also excludes from said grant “ any and all such islands, hummocks, * * * heretofore granted.” Held, that the language of the statute of 1909 was clear and while it may have been the intention of the legislature to include patented land where there had been a failure of compliance, for the court to supply the omission to so provide would be an assumption of legislative authority.</p> <p>The premises here affected being in that part of Jamaica bay specified in the statute of 1909 and that of 1912 and it being conceded on the trial of an action brought by the state to set aside the letters patent that the appropriations by the federal government and the city of New York mentioned in the statute of 1909 have been made, the plaintiff will be granted judgment.</p>

<p>Patents — when failure of assignee of patent to make reasonable inquiry as to outstanding interests of which it had knowledge or the means of knowledge deprives it of the status of a bona fide purchaser without notice — equity — right of prior assignee to recover from later assignee his interest in patents.</p> <p>A party in duty bound to make inquiry is in equity affected with knowledge of all which he would have discovered had he performed his duty. In such ease the means of knowledge are in equity equivalent to knowledge itself. Whore facts of which the assignee of a patent knew and those which it is chargeable with the duty of finding out plainly point to the probable existence of a right or title in conflict with that which it is about to buy, its failure to make reasonable inquiry deprives it of the status of a bona fide purchaser without notice and in that regard its negligence at the time of the purchase of the legal title amounts to a failure to do what a reasonably prudent man would do in the exercise of ordinary diligence.</p> <p>In an action to establish ownership of certain patents, the individual defendant, an inventor seeking a specific result in the decarbonization of petroleum, made a contract to give a certain undivided interest in the results of the basic invention to plaintiff who from time to time advanced money to attain the end sought. Thereafter said individual defendant assigned the patent for the invention to the corporate defendant by written instrument referring in terms to “ outstanding rights.” Held, that as the facts known to the corporate defendant at the time of the assignment of the patent and those facts which it was chargeable with the duty of finding out plainly pointed to a probable existence of a right or title in conflict with that which it was about to buy, plaintiff was entitled to a judgment directing said defendant to assign to plaintiff the undivided interest in the invention, which at the time of the trial he held unimpaired by any overtures he had hitherto made, said assignment to include such patents as had issued prior to the receipt by said corporate defendant of formal notice of plaintiff’s rights and his interest in all patents issued to the individual defendant for the invention in question which have issued since the receipt of such notification or which may hereafter issue.</p> <p>In the circumstances the failure of the corporate defendant to make inquiry as to “ outstanding rights ” deprived it of the status of a bona fide purchaser without notice.</p> <p>Said defendant was also guilty of negligence at the time of the assignment of the legal title to the patent in failing to do what a reasonably prudent man would have done in the exercise of ordinary diligence.</p>

<p>Motion to set aside a verdict in a partition action and for a new trial.</p>

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

Motion on behalf of the plaintiff brought on by an order to show cause why the temporary injunction granted herein should not be continued during the pendency of the action.

Motion by plaintiff to strike certain words from the verdict of the jury as surplusage. Motion by defendant to set aside the verdict and for a new trial.

<p>Deeds — interpretation — contradictory descriptions construed in favor of grantee — right of way — clause construed as reservation of an easement and not an exception — fee of right of way in grantee — injunctions.</p> <p>In construing a deed of conveyance of real estate every reasonable intendment will be resolved in favor of the grantee, and where by one of two descriptions which are to some extent contradictory, the fee of a street would be included, and the other standing alone would indicate an intent to exclude such fee, effect will be given to the description which from the contemporaneous acts of the parties and the situation of the property as it existed at the time of the conveyance, appears best to carry into effect the intention as thus ascertained.</p> <p>Whether the fee of a road passes under a conveyance is a question of intention which justifies the court in looking beyond the mere words of the description and in considering not only the situation of the property, the circumstances in which the deeds were made, the purpose sought to be effected thereby, but also the dealings and conduct of any of the parties who are the successors in title to the parties to the deed.</p> <p>The presumption that the soil of a right of way between two properties belongs to the owner is not affected by the fact that the way leads to and is used by the owner of a third close.</p> <p>Ordinarily the grant of an- easement implies a reservation of the fee, and where no privilege of user is given it indicates that none was deemed necessary by the parties.</p> <p>Immediately following a most careful and complete description by metes, bounds ar.d surveyor’s monuments and observations in a deed in which plaintiff's predecessor in title was the grantee and the lessor of defendant is a successor of the grantor, there was a clause which though reciting “ this conveyance is intended to convey all the land lying east of the new outlet south of the south line of Van Middlesworth west of the center of Owasco Lake Road and north of Owasco Lake,” contained none of the familiar terms usually employed when an exception is designed. Held, that the intention was to yield total and absolute title, possession and estate of all lands within the designated lines.</p> <p>A later and separate paragraph of the deed contained the following clause: “ The premises above described are subject to the following reservation, easements, contracts and reservations; to-wit: The parties of the first part reserve from the premises aforesaid a street or highway running from the bridge that now crosses the new channel or outlet of the Owasco Lake at least three (3) rods wide, and extending from said bridge across said outlet to Owasco Street on the highway leading from Owasco Lake to the City of Auburn.” Held, that said clause will be construed as a reservation of an easement of a right of way only, the fee passing.</p> <p>Lands of the grantor now known as Island park, immediately west of the land conveyed by the deed to plaintiff’s predecessor in title, which plainly speaks of the contemplated use of both properties as vacation parks, were separated from them only by the waters of Owasco outlet. The land in suit is a roadway extending between a highway and the east shore of said outlet, where it meets a bridge spanning the same, the roadway and bridge giving access to and from Island park across the center of plaintiff’s property to and from a public highway leading to the city of Auburn. For many years said roadway has been used only as a highway and no attempt or claim of right to use any part of it for any other purpose or in any wise inconsistent with plaintiff’s ownership of the fee, has been made until defendant, seeking to justify under a lease from the present owner of the Island park property, who is the successor in title to plaintiff’s grantor, has erected and maintained a refreshment stand on the roadway in question in competition with plaintiff. Held, that plaintiff was entitled to an injunction.</p>

<p>Carriers — railroads — redemption of unused ticket — failure to sign receipt or statement — evidence — Penal Law, § 1562.</p> <p>Plaintiff on the same day that he purchased of defendant a ticket for a journey on its railroad, but before the train by which he expected to travel left the station, called at the ticket office, presented his ticket and asked to have it redeemed. Held, that in an action to recover the amount paid for the ticket the fact that plaintiff signed no receipt or statement of facts concerning the ticket and its purchase was no defense unless he was requested so to do, and where there is a conflict in the testimony upon that point a judgment in favor of plaintiff will be affirmed.</p> <p>Section 1562 of the Penal Law containing no provision requiring as a condition of redemption that the purchaser of an unused railroad ticket sign a receipt or statement of facts concerning the ticket, his refusal so to do did not justify defendant’s refusal to redeem the ticket.</p>

<p>Crimes — practice — witness before grand jury may refuse to testify on ground that his testimony may incriminate him — dismissal of indictment founded on illegal and incompetent evidence.</p> <p>A witness called before the grand jury may refuse to testify on the ground that his testimony will tend to incriminate him.</p> <p>Where in such case the witness claims his privilege it is improper to read to him in the presence of the grand jury a statement purporting to have been made by him outside of the grand jury which tends to connect him with the charge of crime under the investigation and press him for an answer to the truth of said statement.</p> <p>All the evidence before the grand jury tending to connect defendant with the crime of abortion was that he was á physician who attended the deceased; that she died at his farm house and that he issued a certificate that the cause of death was lobar pneumonia while two physicians gave it as their opinion that an abortion had been attempted, but whether this attempt had been made by the defendant did not appear by any competent evidence. Held, that an indictment founded on such evidence in connection with the statements of the witnesses who refused to testify, will be dismissed on the ground’that the indictment was founded upon illegal and incompetent evidence and insufficient evidence, as without said statements, improperly used before the grand jury, there was no evidence to justify the indictment.</p>

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

<p>Husband and wife — separation granted for conduct rendering continuance of marital relation intolerable.</p> <p>Under section 1161, subdivisions 1 and 2, of the Civil Practice Act, a separation may be granted for conduct which though not amounting to physical violence or apprehension thereof, causes a state of mind in the plaintiff rendering the continuance of the marital relation so reasonably intolerable as to constitute cruel and inhuman treatment.</p>

<p>Motion to fix sheriff’s poundage under a garnishee execution.</p>

<p>Mechanics’ liens — foreclosure — contract of sale of real estate — improvements by vendee before closing title — when consent of vendor to improvements cannot be implied — failure to show benefit to vendor.</p> <p>The defendant land company as vendor entered into a contract of sale of certain lots with defendant construction company as vendee in July, 1921, the deed to be delivered on or before October 1, 1921. The contract contained the following clause: “It is understood and agreed that the party of the second part is given the privilege of erecting not more than four houses on said premises before the delivery of the deed; provided, however, the individual and personal guarantee is given by Oluf Nielson and Arthur N. Davis, who are the president and treasurer respectively and the principal stockholders of the party of the second part, and such guarantee shall also be signed by all other persons who may become stockholders later on, that in case any mechanics’ liens are filed against said property, they will remove or cause said liens to be removed at their expense and will indemnify the party of the first part against any loss or damage which they might sustain by reason of the existence of such liens.”</p> <p>Before title was closed the vendee under the contract of sale entered into an agreement with the plaintiff to excavate and to build foundations for four houses to which agreement the vendor under the contract of sale was not a party.</p> <p>The plaintiff brings this action to foreclose a mechanic’s lien for labor and material furnished in excavating and building foundations for the houses under the agreement referred to and claims that the interest of the defendant, the vendor under the contract of sale, in the lots in question is subject to plaintiff’s lien because of the alleged consent of the vendor to the improvements; that the vendee has a lien on the vendor’s interest in the land for the work performed by plaintiff and that as plaintiff’s liens are valid against any interest the vendee may have such liens attach under such interest or lien of the vendee against the interest of the vendor. Held, that consent cannot be implied unless the vendor obligates the vendee to whom possession is given to construct the improvement; that the permission to build under the contract of sale does not relate to specific improvement and is indefinite on its face and there is nothing to show that the work done benefited the vendor; that if plaintiff succeeded to the rights of the vendee due performance of the contract by the vendee or its equivalent must be shown as a condition precedent to foreclosure by the vendee or any one succeeding to his rights; that plaintiff has failed to show his right to any lien against the vendor.</p>

<p>Carriers — railroads — interstate commerce — commissions paid by elevating company to forwarding agents for business of elevating grain — elevating company not agent of railroad carrier and carrier cannot be held liable for rebating.</p> <p>Tariff schedules on file with the Interstate Commerce Commission for the defendant specify: “ The rates named herein include a charge of not exceeding one cent per bushel made by the Buffalo * * * elevators against the grain for elevation and transfer from lake vessels to cars, and five days’ storage; said charge to be retained wholly by such elevator companies as compensation for services performed.” Plaintiff in soliciting orders for elevating paid commissions to forwarding agents. Defendant received the grain in its cars from the elevator for shipment and collected from the shippers one cent per bushel for plaintiff’s elevating charges. Defendant refuses to pay plaintiff the money collected for elevating charges on the ground that defendant might be held liable to prosecution under the Interstate Commerce Law for rebating. Held, that in paying commissions to forwarding agents for the business of elevating grain plaintiff did not act as defendant’s agent; that defendant is not liable for the acts of plaintiff and that payment, of the money collected for elevating charges to plaintiff would not create any liability, civil or criminal, against the defendant.</p>

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

<p>Landlord and tenant — injunction — lease — violation of covenant permitting landlord to show premises and put up signs enjoined — intention on part of tenant to hold over no defense.</p> <p>A tenant in New York city will be enjoined from violating the covenants in a lease permitting the landlord to show the premises to prospective purchasers or tenants and to place “ To Let ” and “ For Sale ” signs thereon after a certain date. This is so although the tenant states that he intends to take advantage of the new rent laws in order to retain possession of the premises at a reasonable rental after the expiration of the term.</p>

<p>Application for a mandamus to compel the issuance of warrants in dispossess proceedings.</p>

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

<p>Proceeding to settle accounts of executor.</p>

Appeal by. the defendant from a judgment rendered in the City Court of the city of New York in favor of the plaintiff, after a trial before the’ court and a jury, and from an order denying defendant’s motion to set aside the verdict and for a new trial.

<p>Trusts — wills — payment of annuity to son — when amount first payable from income, deficiency from principal — unlawful accumulation of balance of income — surplus income payable to beneficiary as person presumptively entitled to the next eventual estate.</p> <p>A testator gave all his property, real and personal, to his executors in trust with direction to pay on a certain date after his decease the sum. of $500 to his son and a like sum annually for eight years with proviso that if the son should marry and have a wife or child living such annual payments should be increased to $800 from a certain date succeeding his marriage, for ten years. The will, executed seven years before the death of the testator, directed that at the expiration of the ten years’ period all the rest, residue and remainder of his estate should be paid over to his son to whom an unconditional bequest was made of specific articles of personal property. Upon the judicial settlement of the accounts of the executor and for a construction of the will, testator’s son, who it was conceded is now about fifty-five years of age and has never married, claimed he was entitled to all the interest and income of the estate and in addition $500 annually to be paid from the principal so long as he remained unmarried, and $800 annually should he marry during the ten-year period. Held, that testator’s intention that the $500 and the $800 should first be paid out of income was in accordance with the law and to that extent should be carried out, but his intention to allow the surplus income to accumulate until the expiration of the ten years could not be carried out, as it runs counter to the statute; that the beneficiary of the trust was entitled to the surplus income, if any, as the person presumptively entitled to the next eventual estate, and if the income was insufficient to meet the annuity the deficiency to be paid out of principal.</p>

<p>Real property — deed — breach of covenant of seizin — damages — recovery limited to purchase price and interest.</p> <p>The rule of damages for the breach of a covenant of seizin and for quiet and peaceable possession on a conveyance of real property is the value of the property at the time of the sale, and the purchase price is conclusively presumed to be that value.</p> <p>On January 2, 1912, claimant, having purchased a farm from Julia Boylan, entered upon and remained in possession of the premises until on or about May 1, 1922, when she was dispossessed of the same under a writ of possession issued by a federal court in an action brought by the United States of America against claimant and her grantor, in which action it was adjudged that the title to the farm was in certain Indians and that claimant’s grantor had no title to the farm when she conveyed it to claimant. Held, that upon a claim against the estate of the grantor of claimant, who had in the meantime been adjudged an incompetent, the claimant was only entitled to a judgment for the full purchase price, with interest from the date of the deed to her, less the amount unpaid on a mortgage held by the incompetent’s estate against claimant.</p> <p>While claimant was in possession of the farm she made improvements of a permanent nature and at the time of her eviction the value of the farm had nearly quadrupled, the increase being due to said improvements and the acceleration of farm values in the vicinity. Held, that no allowance could be made for such improvements and acceleration in value of the farm.</p> <p>The deed to claimant being under seal, the six years’ limitation as to the time within which an action could have been brought for breach of the covenant of seizin did not apply.</p>

<p>Mortgages — when deed declared a mortgage — agreement designed to cut off equity of redemption void even if founded on consideration — rights of mortgagor.</p> <p>A deed absolute on its face given solely as security for specific loans, advances and moneys to be advanced, is in equity a mortgage, and the right to redeem when not expressly provided for is read into the instrument by the law.</p> <p>Any agreement on a subsequent event to change the nature of the instrument, preventing the equity of redemption, is void even if based upon a consideration. In an action to have such a deed declared to be a mortgage the plaintiff is entitled to judgment as asked and for an accounting of all rents and profits, and upon payment by plaintiff to defendant of all moneys found due upon the mortgage and of all payments for repairs, upkeep, taxes, etc., which the defendant has made or expenses incurred by him in that respect, together with reasonable charges for caring for the property and collecting the rents, the mortgage will be discharged of record.</p>

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

<p>Taxpayer’s actions for the restitution of public moneys paid to the defendants Starner and Drake and to restrain further payments to them.</p>

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

<p>Trusts — death of life tenant — unpaid dividends on stock — when remainderman entitled thereto.</p> <p>A deed of trust provided that the trustees pay to the settlor during her life all the net income “ and on her death to pay and deliver the whole principal sum or property to her daughter.”</p> <p>Plaintiffs claim that all unpaid dividends on certain stock forming part of the trust estate at the time of the death of the settlor became part of her estate and vested in them as her executors. Held, that upon the death of the settlor of the trust the stocks held in trust and all the income then due or that might thereafter accrue vested in the remainderman.</p>

<p>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, entered upon the verdict of a jury.</p>

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

<p>Appeal by plaintiff from a judgment entered upon a verdict directed in favor of defendant in the City Court of the city of New York.</p>

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

<p>Appeal from a judgment of the Municipal Court of the city of New York, borough of Bronx, second district, in favor of plaintiff and against defendant for $500 damages, besides costs.</p>

Appeal by plaintiff from direction of verdict for defendant in the Municipal Court of the city of New York, borough of Manhattan, seventh district.

<p>Application to dismiss objections to probate of a will.</p>

<p>Wills — construction — transfer tax — when dower should be deducted from amount of estate.</p> <p>Under the will of decedent which made no provision in lieu of dower his widow was given a life estate in the residuary estate which consisted of both real and personal property. Held, that the power given to her and testator’s daughters as executrices to sell, mortgage or lease the real estate or change the form of any investment, whether of real or personal property, was not inconsistent with the widow’s right of dower.</p> <p>The claim for dower not being inconsistent with the interests of any other beneficiary under the will, the widow was not bound to elect between the testamentary provisions in her favor and dower, and the value of her dower interest must be deducted in a transfer tax proceeding.</p>

<p>Trusts — corporation — when liquidating trustees who assume control of business personally liable for goods purchased.</p> <p>Where under and by virtue of a trust agreement constituting defendants liquidating trustees of a domestic business corporation, they assume the control, operation and conduct of the business theretofore carried on by the corporation, they are personally liable for the agreed price of goods sold and delivered to them thereafter.</p> <p>A clause of the trust agreement which provides for the election of the liquidating trustees to the board of directors of the corporation does not take them out of the class of trustees operating a business trust under said clause, which merely defines one of the incidental modes by which defendants, as trustees, were to effectuate the express purposes of the trust.</p>

<p>Action to set aside an assignment of a mortgage on real property and to foreclose the mortgage.</p>

<p>Insurance — liability insurance — assured may not recover damages from insurer because it failed to settle an accident claim on a reasonable basis before suit.</p> <p>An insurance company is not liable in damages to the assured because it does not settle an accident claim for less than the amount of the judgment later recovered.</p> <p>Where a complaint alleges that the insurance company refuses to contribute the full amount of its liability policy in settlement of a claim although it was reasonably probable that a recovery could be had for a greater amount than the proposed settlement and that a judgment was later recovered for a much greater amount of which the assured had to pay all over the amount of the policy but alleges no negligence on the part of the company in preparing or trying the case, the action will be dismissed on the pleadings.</p> <p>An allegation in the complaint that the company was guilty of bad faith does not save the pleading since bad faith may not be based upon the exercise or failure to exercise a contractual right optional in character.</p>

<p>Landlord and tenant — increase of rent — summary proceeding — petition — when allegation that rent is no greater than that for which tenant was liable in preceding month proper.</p> <p>Where a landlord in New York city served a notice in January on a tenant who was in possession of the premises prior to October, 1920, that if after March first the tenant continued in possession the rent would be at an increased amount and that his continuance would be deemed a consent to the increase and the tenant pays no rent for March or April, the landlord may after the April rent is due maintain summary proceedings.</p> <p>The petition which sets up the non-payment of the April rent and alleges that it is no greater than the amount for which the tenant was liable for the preceding month is not defective on the theory that the tenant was not hable for the increased rent at any time.</p> <p>The tenant set up the unreasonableness of the rent as a defense and upon an examination of the facts the proposed increase from thirty-five dollars to sixty dollars was limited to forty-five dollars.</p>

<p>Husband and wife — divorce — validity of former French decree between parties.</p>

<p>Certiorari to review assessments.</p>

<p>Motion to vacate notice for examination of witnesses.</p>

<p>Motion for judgment upon referee’s report.</p>