Volume 12 — Bedell

The nature of the action and' the facts, so far as material, are stated in the opinion. Upon the evidence at the close of the entire case the complaint should have been dismissed or a verdict should have been directed for the defendant as a matter of law. (Ruppert v. B. H. R. R. Co., 154 N. Y. 90 ; Searles v. M. Ry.

The nature of the 'action and the facts, so far as material, are stated in the opinion. The written agreement of December 21, 1863, known as the indenture, controls the rights and obligations of the plaintiff and her mother on the one hand and of the deceased on the other hand, and parol evidence was not admissible to contradict, enlarge or vary its terms and provisions. (Stowell v. G. Ins. Co., 163 N. Y. 298 ; Trustees, etc., v. Lynch, 70 N. Y. 440 ; Hall v. Beston, 26 App.

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 5, 1902, upon an order which reversed a judgment of Special Term sustaining the validity of a mechanic’s lien against property of the defendant Kinney and dismissed the complaint. The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The important condition of the policy was the demand for a paid-up policy within the six months. ( Wright v. Wright, 54 N. Y. 435 ; Mills v. A. E. S. Bank, 28 Misc. Rep. 251 ; Zander v. N. Y. S. & T. Co., N. Y. L. J. Oct. 31, 1902 ; England v. Lord Tredega, 35 L. J. Ch. 386.) The tender of the indemnity and release was made in sufficient time.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 14, 1901, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The complaint was properly dismissed. (Greve v. A. Ins. Co., 81 Hun, 28 ; Heslin v. E. B. & L. Assn., 28 Misc. Rep. 378 ; P. Ins. Co. v. Stukey, 18 Ohio, 455 ; Carpenter v. Shepardson, 43 Wis. 406 ; Bennett v. State, 3 Ind. 167 ; Daley v. P. B. L. & S. Assn., 178 Mass. 13 ; Cowenhoven v. Ball, 118 N. Y. 231 ; Brady v. Nally, 151 N. Y. 258 ; Matter of Clark, 168 N. Y. 427 ; Matter of N. Y., L. & W. R. R. Co., 98 N. Y. 447; G. P. Co. v. O. P. R. R. Co., 42 Fed. Rep. 470 ; Egerton v. Brownlow, 4 H. L. Cas. 196.)</p>

The facts, so far as material, are stated in the opinion. Section 290 of the revised charter was plainly within the power to create municipal corporations, and to enact, amend or repeal their charters, inherent in the people of the State and expressly conferred by their written Constitution.

The nature of the action and the facts, so far as material, are stated in the opinion. This proceeding was a summary proceeding to dispossess a tenant. As such it should have been dismissed for want of jurisdiction. The Appellate Division had no power to convert it into, or consider it as, an action in ejectment.

<p>Evidence—Parol Evidence Inadmissible toYary Writing. A written contract to saw logs into lumber for a stipulated price per thousand, to provide a mill for that purpose and make suitable arrangements for receiving the logs when delivered at the mill in -a specified manner, is complete and cannot be varied by evidence of a prior oral agreement between the parties making the method of delivering the logs different from that specified in the contract, the result of which would have been to double the price fixed therein.</p>

The action is upon a promissory note for $/T50 ; dated .February 15th, 1899, and payable April 5th, 1899 ; made by the firm of Russell & Birkett, of which defendant is the'surviving member, to the order of the Manhattan Railway Adver-, tising Company and by the payee transferred to the plaintiff before maturity.

The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The constitution and by-laws of the C. M. B. A., in connection with the application and certificate, constitute the insurahce agreement by which the rights of the parties must be fixed. (Sabin v. Phinney, 134 N. Y. 423 ; Kimball v. Lester, 43 App. Div. 28 ; Collins v. Collins, 30 App. Div. 341 ; Fink v. D., L. & W. M. A. Society, 171 N. Y. 616 ; Eagan v. Eagan, 58 App.

This was an action for libel. The facts, so far as material, are stated in the opinion. The trial justice erred in admitting in evidence the affidavit of Marion S. Yerkes, verified the 21st day of June, 1899. (Ives v. Ellis, 169 N. Y. 85.) The grounds of objection were well stated. It was not harmless error as the affidavit was strongly calculated to arouse the jury’s sympathy.

The nature of the action and the facts, so far as material, are stated in the opinion. Counsel fees in an unsuccessful attempt to vacate an attachment in an action where the grounds fur the attachment are extrinsic the cause of action, should not have been allowed. (State v. Heckart, 62 Mo. App. 427 ; Randall v. Carpenter, 88 N. Y. 293 ; Lyon v. Hersey, 32 Hun, 253 ; Sweet v. Mowry, 71 Hun, 381 ; Whitside v. N. C. Assn., 84 Hun, 555.)

The nature of the action and the facts, so far as material, are stated in the opinion. The courts will always look for the best measure of damages which can be found.' In the case at bar the rental value cannot be ascertained. A property owner cannot be damaged with impunity simply because he cannot or makes no attempt to rent his property. He is bound to show only existing facts and let the court or jury determine by the best means obtainable what his damages are.

This action was brought to recover damages for a libel based upon two publications in a newspaper issued by the defendant known as The New York Journal, one a news article under date of January 16th, 1900, and the other an editorial on the following day.

The nature of the action and the facts, so far as material, are stated in the opinion. This court is not ousted of its jurisdiction to determine the questions raised by this appeal, by the recital in the order of the Appellate Division that the action is dismissed upon the facts, as well as upon the aw.

<p>Transfer Tax—A Seat in the New York Stock Exchange Is “ Property” Within the Meaning of Section 242 of Tax Law and Liable to the Transfer Tax. The present Tax Law (L. 1896, ch. 908), being a revision and consolidation of previous statutes relating to taxation, the scheme of taxation therein provided for must be considered as a continuation and reproduction of that existing under the statutes superseded by it and not as an original scheme, and the tax imposed upon the devolution of property by will or intestacy having been, from its inception, entirely distinct from the ordinary annual taxes upon property, the definition of the personal property upon which such tax is imposed is not not that of subdivision 5 of section 2 of the Tax Law (L. 1896, ch. 908, as amd. by L. 1901, ch. 490), which is a reproduction of the provisions of law then in force regulating general taxation, but is that contained in section 242 in the article relating to taxable transfers (L. 1896, ch. 908, art. 10), and applicable to the transfer tax alone, which provides that “ The words ‘ estate ’ and ‘ property,’ as used in this article, * * * shall include all property or interest therein, whether situated within or without this State;” a seat in the New York Stock Exchange being “property” within the meaning of the latter definition is subject, therefore, to the inheritance transfer tax prescribed by article 10 of the Tax Law, upon the death of the owner thereof and its devolution to his personal representatives.</p>

The facts, so far as material, are stated in the opinion. The common council had jurisdiction and power to act upon the account in question ; the action of the municipality in auditing is now conclusive upon it, and beyond recall by any of its officers. It cannot be attacked in this collateral proceeding. (Nelson v. Mayor, etc., 131 N. Y. 16 ; Osterhoudt v. Rigney, 98 N. Y. 222 ; Klien v. Smith, 54 Miss. 254 ; Kelly v. Wimberly, 61 Miss. 548 ; Martin v. Bd.

<p>Appeal — Either Party May Notice and Place upon the Motion Calendar Appeals prom Interlocutory Judgments at his Convenience. The purpose of the Court of Appeals in amending rule 11 relating to motions and orders by including “appeals from interlocutory judgments overruling or sustaining demurrers ” among those which should be placed upon the motion calendar was to remove the doubt as to what calendar they should be placed upon occasioned by the repeal of section 193 of the Code of Civil Procedure, relating to such appeals, hy chapter 946 of the Laws of 1895; it was not intended to exclude an appeal, when duly allowed hy the Appellate Division, from any interlocutory judgment; therefore, an appeal by permission from an interlocutory judgment of any kind is an appeal from an order in an action which should not go on the regular calendar, but either party has the right to notice it for argument and place it upon the motion calendar at jus convenience.</p>

The plaintiff sues upon a certificate of insurance issued to him by the defendant, a foreign corporation, upon his application ; whereby the defendant agreed to pay out of its benefit fund to his wife, upon his death, “ a sum not exceeding $5,000, in accordance with and under the provisions of the laws governing said fund; ” upon certain conditions being complied with, to the effect, in substance, that the statements in plaintiff’s application are made part of the contract…

The nature of the action and the facts, so far as material, are stated in the opinion. Schwicker went to Dreher as a real estate broker to procure a loan for a compensation, and as such the broker had but a limited authority to act for him. (4 Am. & Eng. Ency. of Law [2d ed.], 962 ; Philster v. Cove, 48 Mo.

The nature of the action and the facts, so far as material, are stated in the opinion. The agreement of June 16, 1899, was void for want of consideration.

The nature of the action and the facts, so far as material, are stated in the opinion. There was sufficient evidence in support of the allegations of the complaint to require its submission to the jury. (Colt v. S. A. R. R. Co., 49 N. Y. 671 ; Bagley v. Bowe, 105 N. Y 171 ; Fealey v. Bull, 163 N. Y. 397 ; McDonald v. M. S. Ry.

The facts, so far as material, are stated in the opinion. The court erred in its charge to the jury. (Cancemi v. People, 16 N. Y. 501 ; Remsen v. People, 42 N. Y. 1 ; People v. Elliott, 163 N. Y. 14 ; People v. Friedland, 2 App. Div. 334 ; People v. Lamb, 2 Keyes, 360 ; People v. Clemmens, 42 Hun, 353 ; People v. Wiliman, 44 Hun, 187 ; People v. Barberi, 149 N. Y. 279 ; McKenna v. People, 81 N. Y. 362 ; People v. Chartoff, 72 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The facts shown upon the trial support and sustain the conclusions of law and findings of fact of the trial court. (N. H. Co. v. Bement, 163 N. Y. 507 ; Shotwell v. Dixon, 163 N. Y. 47 ; Hinckel v. Stevens, 165 N. Y. 173 ; Townsend v. Bell, 167 N. Y. 467; Galway v. M. E. R. Co., 128 N. Y. 156 ; Rayner v. Pearsalls, 3 Johns.

<p>County Treasurers—Fees of, for Receiving and Paying over State Tax and School Moneys—Construction of County Law and Statutes Relating Thereto. The provision of the County Law relating to the fees of county treasurers for receiving and paying over the state tax and school moneys (L. 1892, ch. 686, § 143, subd. 5) does not purport or attempt to fix the compensation of such treasurers, but continues the compensation to which they ,may be entitled under existing laws, but not in any county to exceed the sum of $2,000; it does not operate to amend or change the limitation previously fixed by the statute (L. 1871, ch. 110, § 1) providing that “The several county treasurers of this state * * * shall be entitled to retain a commission of one per centum on every dollar belonging to the state which they shall receive and pay over, to wit, one-half of one per centum for receiving and one-half of one per centum for disbursing, but in no case to exceed the sum of five hundred dollars ” except in the counties of Kings, Albany, Otsego, Onondaga, Brie and Westchester, in which the fees are not restricted to §500, and in New York county, for which special provisions were made by section 2 of chapter 733 of the Laws of 1872; therefore, the treasurer of a county not excepted from the provisions of that statute is not entitled to more than §500 for his fees for receiving and paying over state tax and school moneys.</p>

<p>Appeal from a judgment of the Court of General Sessions of the Peace in the county of "New York, rendered September 30, 1901, upon a verdict convicting the defendant of the crime of murder in the first degree, and from an order of said court made March 12, 1903, amending the return on appeal by adding thereto a copy of a lost exhibit received in evidence upon the trial.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>1. Corporations—Dissolution — Judgment. „ A final decree dissolving a corporation and appointing a permanent receiver, which orders a sale of the realty subject to specified liens, does not have the effect of divesting the liens of existing judgments not referred to therein, and, until any particular judgment is satisfied from the moneys in the hands of the receiver, it is the right of the owner of the judgment to proceed to execution and sell subject to the order of the court.</p> <p>2. Receivers — Sale of Realty — The receiver of an insolvent corporation derives his power and authority from the provisions of the General Corporation Law, which do not permit him to sell the corporate realty, subject to certain liens referred to in the final decree and disregard others that are valid and existing, but he is required to redeem mortgages and pledges and satisfy judgments which may be an incumbrance upon the property, or to sell it subject thereto."</p> <p>3. Same — Provisions of Code of Civil Procedure Not Applicable Thereto. The provisions of the Code of Civil Procedure, permitting the sale of lands in partition free of all liens, are not applicable to the dissolution of corporations on the ground of insolvency.</p> <p>4. Judicial Sale — Receivers — Judgment. A purchaser at receiver’s sale of the land of an insolvent corporation takes title subject to the lien of a judgment recovered against the corporation prior to the institution of proceedings for its dissolution, but declared void and directed canceled of record in a stockholder’s action attacking the judgment as fraudulent, which cancellation was enjoined pending appeal on which the judgment was declared valid and permitted to stand for a reduced amount, notice of which judgment and the pending appeal was given to the bidders assembled at the sale.</p> <p>5. Execution — Judicial Sale — Corporations. The owner of a judgment, which is a lien upon the lands of an insolvent corporation which has passed into the hands of a receiver, may proceed to execution and sell the realty subject to the order of the court, although his judgment was omitted from the list of liens enumerated in the final decree of dissolution and subject to which the receiver was authorized to, and did, make sale of the realty.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The amendment as to suicide adopted by the defendant association is within the power to amend, is reasonable and applied to William N. Shipman at the time of his death. (S. M. B. Society v. Burford, 70 Penn. St. 321 ; Supreme Tent v. Hammer, 81 Ill. App. 560 ; Bigelow v. B. L. Ins. Co., 93 U. S. 284 ; De Gogorza v. K. L. Ins. Co., 65 N. Y. 232 ; 3 Am. & Eng.

The nature of the action and the facts, so far as material, are stated in the opinion. If the plaintiff is entitled to recover from the defendant under the complaint, such right can only be established in a court of equity. (L. 1890, ch. 475, § 5 ; Page v. Drake, 52 Hun, 252 ; Townsend v. Whitney, 75 N. Y. 425 ; 24 Am. & Eng.

Appeal in each of the above-entitled proceedings from an order of the Appellate Division of the Supreme Court in-the third judicial department, entered January 30, 1903, which reversed an order of Special Term reducing and confirming as reduced an assessment upon the special franchises of the respective relators. The assessments in question were made in the year 1900, pursuant to the provisions of the Tax Law, as amended by chapter 712 of the Laws of 1899.

The facts, so far as material, are stated in the opinion. When the resolution of the police board was passed, retiring the relator, he knew his rights, and with full knowledge of the facts, returned his shield, keys and other police property, accepted his salary as police captain up to the time of his retirement, and his pension money thereafter, and sought another position. This was a complete ratification and acquiescence in the action of the commissioners.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant’s adjuster had power to waive the breach of the condition in question. (McGuire v. H. Ins. Co., 7 App. Div. 575 ; Flaherty v. C. Ins. Co., 2 App. Div. 275 ; Smaldone v. Ins. Co. of N. A., 162 N. Y. 580 ; Sergent v. L. & L. & G. Ins. Co., 155 N.Y. 349 ; Bishop v. A. Ins. Co., 130 N. Y. 488 ; Smith v. H. Ins. Co., 47 Hun, 30 ; Weed v. L. & L. & G. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. The warrant of dispossession canceled the lease and exonerated the plaintiff’s assignors from all liability for the future payment of rent. (Michaels v. Fischel, 64 N. Y. Supp. 1007 ; Code Civ.

<p>Mechanic’s Lien—A Notice Thereof, Which Fails to State When First Item of Work Was Done, Is Insufficient (L. 1897, Ch. 418, § 9, Sued. 6). A notice of lien which fails to state when the first item of work was done, or anything from which that time may he inferred, as required by subdivision 6 of section 9 of the Lien Law (L. 1897, ch. 418), is insufficient, notwithstanding the notice substantially complies with the other provisions of the statute; since the provision thereof that the law shall be construed liberally does not authorize the court to dispense with what the statute says the notice shall contain.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 8, 1902, which affirmed a decree of the Erie County Surrogate’s Court establishing the lost will of Barbara Granacher, deceased, and admitting the same to probate.</p>

Appeals from orders of the Appellate Division of the Supreme Court in the first judicial department, entered January 14, 1903, which affirmed orders of Special Term denying motions for peremptory writs of mandamus to compel the defendant to reinstate the petitioners in the position of detective sergeant in the police force of the city of New York.

Appeal, by permission, from an interlocutory judgment, entered December 18, 1902, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an order of Special Term overruling a demurrer to counterclaims set forth in the answer and sustained the demurrer. The following are the questions certified : “ 1. Is the first counterclaim set forth in the answer insufficient in law upon the face thereof ? “ 2.