Volume 12 — New York Miscellaneous Reports

<p>Application for an order for an inspection of plaintiff’s books of sales.</p>

<p>Specific performance on the part of a purchaser of real estate will not he decreed where there is a douht as to the ability of the vendor to convey a good marketable title to the property.</p> <p>A trust deed empowered the trustee “ at any time, to grant, sell, assign and transfer the said real and personal estate so held by him in trust,” to apply the proceeds of sales and the capital of the personal estate, if necessary, to the payment of the debts mentioned in the deed, and to reinvest the surplus proceeds in the purchase of productive real estate, in bonds and mortgages on uninpumbered real estate, “or in such other safe and permanent securities as he may consider proper.” Plaintiff, as trustee, contracted to sell to defendants a house and lot which had been acquired by his predecessor as a reinvestment of surplus proceeds of the sale of a portion of the trust property, but defendants refused to perform on their part on the ground that plaintiff had no power or authority to sell such property, and could not convey a good title. In an action to compel specific performance, held, that the question as to plaintiff’s authority, under the terms of the trust deed, to sell property acquired as a reinvestment, was at least so doubtful as to affect the marketable value of the property, and that the title offered was not one which a purchaser should be required to accept.</p>

<p>While a provision of the Constitution may need legislation to enforce its principles and give them affirmative effect, yet such provision, without any legislation, may have a negative force in prohibiting acts in violation of its terms and nullifying statutes repugnant to its principles.</p> <p>Chapter 717, Laws of 1894, which exempted honorably discharged sol diers and sailors from the operation of the Civil Service Law and from being examined to test their fitness for pbsitions the pay of which does not exceed four dollars per day, is in conflict with the provisions of section 9 of article 5 of the new Constitution, and repugnant to its principles, and is, therefore, abrogated by it.</p> <p>By such abrogation of chapter 717 of the. Laws of 1894, section 4 of chapter 410, Laws of 1884, as amended by chapter 29, Laws of 1886, Is revived and again becomes a part of the law of the state.</p> <p>An applicant for the position of policeman in the city of Albany, although he is an honorably discharged soldier of the late Civil war, is subject to the Civil Service Law, and must pass the examination required thereby.</p>

<p>Motion to strike out portions of the reply which set up separate and distinct claims against the defendant in opposition to the counterclaim in the answer.</p>

<p>Application for writ of mandamus to compel the board of supervisors to pass upon certain bills for maintenance of persons committed to the home by magistrates of the county of Kings.</p>

Aotioh to have a certain mortgage adjudged to he a part of the assets of the estate of which plaintiff is an executor and trustee.

<p>An account stated is not conclusive upon either party, but is simply prima facie presumptively correct, and may be impeached for any error induced by mistake or fraud.</p> <p>A counterclaim is not demurrable because an affirmative judgment thereon is not demanded. -</p> <p>In an action brought by an assignee the defendant can only recover upon a counterclaim which was due at the time of the assignment, but this is matter of proof at the trial, and need not be pleaded.</p>

<p>By moving on the original papers to vacate an attachment the defendant concedes all that is stated in the affidavits and their legal intendment.</p> <p>An application for an attachment in the City Court of New York is governed hy section 3169 of the Code, and not hy section 636.</p>

<p>Appeal from judgment in favor of the plaintiff.</p>

Appeal by the defendant from an interlocutory judgment overruling the demurrer to the plaintiff’s first cause of action.

<p>Appeal by defendant from order denying motion to vacate attachment against its property.</p>

<p>A husband who does not undertake to pay for the services of brokers in the procurement of a sale or exchange of land belonging to his wife, whose ownership is made known to the brokers during the negotiations, cannot be held personally liable, for such services.</p> <p>To make the wife liable in such a case it must be shown that the husband had authority to act for her, or that she participated in the negotiations or ratified his acts.</p> <p>An employment of brokers cannot be proved by custom.</p>

<p>Appeal from judgment rendered on the dismissal of the complaint, and from order denying motion for a new trial.</p>

Submission of controversy without action. Plaintiff contracted to sell to the defendant certain real estate belonging to the estate of his testator, and tendered an executor’s deed with the usual covenants for conveyance and assuring the fee simple of the premises free from incumbrances excepting a mortgage, which the defendant refused to accept, claiming that the plaintiff had no power to sell under the will of testator.

<p>Exceptions ordered heard at General Term in the first instance after dismissal of complaint.</p>

<p>Motion for a peremptory mandamus.</p>

Motion by plaintiff to continue the injunction order heretofore granted against the defendant, and motion by defendant to dismiss the action, or to vacate and set aside the service of the summons and complaint in this action.

<p>A provision in an instrument creating a trust which restricts the power of the trustee to sell, or imposes a condition upon him, limits his right to convey a title to a purchaser.</p> <p>One who purchases securities from a trustee with knowledge that he is acting in that capacity in the transaction is chargeable with notice of the terms of the instrument creating the trust.</p> <p>Where the trust deed imposes, as a condition of the sale or transfer of the trust property, the obtaining of the consent of the cestui que trust, such consent is a condition precedent to each sale or transfer, and an unauthorized sale or assignment is not validated by a subsequent consent of the cestui que trust.</p> <p>A consent by a cestui que trust to an assignment of securities by the trustee is not a ratification of his act when given in ignorance of the fact that the trustee has misappropriated a large part of the estate, including the proceeds of such assignment.</p>

<p>Motion to continue injunction.</p> <p>In 1874 the plaintiff commenced the manufacture of gray mottled enameled ironware. In 1876 a patent was issued for the process of making this enamel. The plaintiff applied to its goods the name “ Granite Ironware,” and under that name they became known to the public throughout the country. The plaintiff has now established a city known as Granite City, opposite St. Louis, where about 1,500 men are employed and salaries of about $75,000 per month are paid.</p> <p>The defendant, having purchased goods from another manufacturer, advertised them for sale as “ granite ware,” and thereupon this motion was made to enjoin the use of that name in connection with the ware, the plaintiff claiming a common-law trade mark in the name..</p>

Motiox to vacate an ex parte order requiring the receiver to permit the sheriff to levy attachments, and motion by the attaching creditors to confirm said order.

<p>The law will not impute fraud without positive testimony; such testimony may be circumstantial, but the circumstances must point to the fraud with some degree of certainty.</p> <p>Where a contract has been executed and large amounts of money have been expended therein, and the rights of innocent parties are imperiled, the courts will require a stronger degree of evidence to establish its invalidity than would be required in an action to set aside an executory contract, where no great loss would follow.</p> <p>In order to maintain a taxpayer’s action to set aside a contract made by municipal officers, on the ground of fraud or waste, knowledge of the fraud of such officers must be brought home to the contracting party.</p> <p>A municipal board is not bound to await the return of one of its members from a pleasure trip, or even a business trip, before'transacting the business which may come before it, and notice to a member who is absent from the state is not necessary to render the meeting valid.</p> <p>That an act may be against public policy is no legal taint where such act is expressly authorized by the legislature.</p>

<p>Cebtiobabi to review the decision of the board of excise refusing leave to transfer a license.</p>

<p>A complaint alleging that a wife was possessed of personal property which she received prior to 1848, with a portion of which she purchased real estate without her husband’s consent; that she died before her husband, leaving a will; that her executor proposes to dispose of the property in accordance with said will, and has conveyed the real estate, but has not received payment therefor, and asking that it be adjudged that said property belonged to the husband and passed to his estate and next of kin, for a distribution and a judgment that the next of kin are ultimately entitled to the estate, does not set forth more than one cause of action, if any.</p> <p>The next of kin of a decedent are proper, though not necessary, parties plaintiff in an action by the personal representatives to recover property alleged to belong to the estate.</p>

<p>Pbooeedings to determine the rights of claimants to surplus moneys on foreclosure.</p>

Action of quo warranto to determine the title to the office of superintendent of streets of the city of Albany as between relator and defendant.

<p>The board to award the contract for legislative printing, pursuant to sections 72 and 77 of the Legislative Law, cannot adopt as a basis for computation, in determining the lowest bidder, the extra copies of bills called for by the concurrent resolution of the senate and assembly in 1892.</p> <p>A concurrent resolution of the two houses is not a statute.</p>

<p>A court of equity has no power to try a disputed title to office of trustees of a corporation; yet, where one set of trustees claim to be de facto in office and have possession of the books and assets of the corporation, and a rival board, claiming to be trustees de jure, are seeking to obtain possession and control thereof, equity will interfere to prevent an unseemly struggle between them, and, upon a proper case being made, will restrain the claimants out of possession from interfering with the possession and control of the others until the question of title to the office ' can be passed on in the manner provided by law.</p>

<p>A representation by a female that she is a maiden, when in fact she is a widow or a divorced woman having legal capacity to remarry, or by a man that he is a bachelor, when in fact he is a widower or a divorced man having legal capacity to remarry, is not such a fraud as will authorize the annulment of a marriage.</p>

<p>Application for a mandamus requiring the superintendent of public buildings to appoint the applicant to the position of deputy superintendent.</p>

<p>Action to recover certain property claimed to have been levied upon under an attachment.</p>

<p>Motion for the appointment of commissioners of estimate and assessment.</p>

<p>The board oí street opening are not required to take final action on the day fixed by the notice.</p>

<p>' Action to restrain the enforcement of a chattel mortgage given by the plaintiff’s assignor.</p>

<p>Appeal from judgment iu favor of the defendants.</p>

<p>Service of an order placing a cause on the short cause calendar, made on the attorney of a party at one o’clock on the day preceding that set for trial, is sufficient.</p> <p>The opening of a default is a favor which the court has a right to refuse if the interests of justice require a refusal.</p>

<p>Security for costs will not lie required of a plaintiff as a nonresident, where it does not affirmatively appear that he has no regular office for the transaction of business within the city of New York.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon a verdict directed by the court, and from order denying motion for a new trial.</p>

<p>Defendant’s predecessor failed to return certain plates belonging to plaintiff, according to agreement, after the printing therefrom was finished, and the plates were afterwards destroyed. Upon purchasing the plant the defendant agreed to assume the obligations and liabilities of its predecessor. Held, that this included its liability to the plaintiff, and that he was entitled to the benefit of the agreement although not a party thereto.</p>

<p>Appeal from judgment in favor of the plaintiff.</p>

<p>Appeal from an order for a bill of particulars.</p>

<p>Appeal from judgment in favor of the defendant entered upon the verdict of a jury.</p>

<p>Where the committee of a lunatic, appointed by the courts of this state, has been admitted as a party to an action in a foreign state, and awarded in such action means for the support of the lunatic, which constitute about all of the estate which came to the committee’s hands, the decision of the foreign court on the question of the committee’s commissions, made after litigation by both parties, is entitled by way of comity to weight and respect by the court which appointed him.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial on the minutes.</p>

<p>While, ordinarily, the driver of a vehicle is guilty of negligence in attempting to cross a street railway track a short distance in front of an approaching car; yet, where the street is crowded with cars, so that he would have to wait a long time for any passage at all, he should not be held to the same degree of care as in a locality where cars pass only at intervals.</p>

<p>A passenger on a street car takes the risk of the usual and necessary movements of the car, though sudden.</p> <p>In an action for injuries alleged to have been caused by the defendant’s negligence, the plaintiff claimed to have been thrown from an open car in consequence of its suddenly starting up after crossing intersecting tracks, while defendant claimed that plaintiff was intoxicated and fell from the car while asleep. It appeared that he was sitting at the time on the last seat, with his back to the conductor. Held, that a verdict in favor of the plaintiff was erroneous, as it would be impossible for such a movement to throw him off if he was sitting in a safe position.</p> <p>It is the duty of the General Term, on an appeal from an order denying a new trial, to consider the facts and to set aside the verdict if it is not a just one.</p>

<p>In an action for damages alleged to have been caused by the sudden starting of a street car, plaintiff’s evidence tended to show that while he was . getting on the front platform the driver let off the brake and started the car and plaintiff was thereby thrown violently to the ground and dragged some distance before the car stopped, Some of the defendant’s witnesses testified that plaintiff tried to get on the car while in motion, missed his hold and fell and was dragged until the car stopped, while the driver testified that the car was standing still, and that plaintiff stumbled, lost his balance and fell, and that the car did not move until he was picked up. Held, that the case was one for the jury to determine and that a verdict in favor of the plaintiff would not be disturbed.</p> <p>Where the injury to a man fifty-seven years old caused concussion of the brain and spine, in addition to numerous bruises, and paralysis of the bladder and sphincter muscle, confining him to his bed for four weeks and preventing his working for about twenty weeks, and he still suffers pain four years after the accident, a verdict for §3,600 is not excessive.</p>

<p>Appeal from judgment dismissing, the complaint.</p>

Action to procure au adjudication that a claim of the plaintiff for' services rendered to a former receiver of the corporation is a charge upon the assets in the defendant’s hands, and for the payment thereof..

<p>An action to redeem may be maintained by the mortgagor, or those claiming under him, against the mortgagee in possession, or those claiming under him, unless the mortgagee has continuously maintained an adverse possession of the premises for twenty years after breach of a condition of the mortgage.</p> <p>A mere taking possession under an assignment of the mortgage, without some visible and notorious act in hostility to the title of the mortgagor, is insufficient to show such an adverse possession as will bar an action to redeem from the mortgage.</p>

<p>In an action against a trustee and his general assignee to establish title in favor of the cestui que trust in land purchased by the trustee in his own name upon foreclosure of a mortgage belonging to the estate, equitable liens should not he recognized in favor of moneys borrowed by the cestui que trust from the trustee, although the mortgage was pledged therefor, nor for moneys advanced to complete a building on the premises, where it appears that the trustee had converted to his own use much larger sums belonging to the cestui que trust. ,</p>

Action to establish a lien upon the interest in real estate held by defendants for a proportionate amount, of a mortgage paid by the plaintiff and her sisters, and to enforce payment thereof.

Action by a taxpayer to set aside certain franchises granted to the defendant companies by the common council of the city.

The petitioner, an honorably discharged soldier of the war of the Rebellion, applied for a writ of mandamus, under chapter 344 of the Laws of 1895, to compel the civil service commissioners of the city of Brooklyn to subject him to a noncompetitive examination instead of a competitive one, which they insisted upon, to ascertain his fitness to go upon the list of eligibles for the place of messenger in the civil service of the city of Brooklyn.

Action to establish the right of the relator to the office of commissioner of highways of the town of Warwick, Orange county, and to oust the defendant from the same, tried before the court without a jury.

<p>One member of a copartnership has no authority, without the consent of his partner, to sell and transier all the partnership property and effects to a third person who is not a creditor, and thus practically terminate the partnership.</p>

<p>Where the commissioner of city works refuses to grant a permit to a street railroad to open the streets for the purpose of laying its tracks, the remedy is by mandamus, and not by injunction to restrain interference with the work.</p> <p>In such a case, where the work has not been begun, an injunction will not lie to prevent the city authorities from interference.</p>

Motion by appellant, in the alternative, for reargument of the appeal or for leave to appeal to the Court of Appeals from judgment of affirmance of this court.

<p>Appeal by the defendant corporation from an order of the Special Term denying its motion to vacate an order for the examination before trial of certain of its officers.</p>

<p>Motion in the alternative for a reargument or for leave to appeal to the Court of Appeals.</p>

Appeal by the plaintiff from a judgment of the District Court in the city of New York for the first judicial district, Tendered by the justice thereof, without a jury, in favor of the defendants. This was an action in replevin. The opinion states the material facts.

<p>Appeal from a judgment of the District Court in the city of New York for the first judicial district, rendered by the justice, without a jury, in favor of the defendant.</p>

<p>Appeal by the plaintiff from a judgment in favor of the defendant, rendered by the justice of the District Court in the city of New York for the fifth judicial district, after a trial had without a jury.</p> <p>The opinion states the nature of the action and the material facts.</p>

<p>Appeal from judgment dismissing complaint, entered upon findings of fact and conclusions of law at Special Term.</p>

Appeal by plaintiffs from judgment dismissing plaintiffs’ complaint after trial of the issues by the court without a jury. Also appeal by plaintiffs from an order denying plaintiffs’ motion for a provision in the judgment, or by order, continuing a temporary injunction or appointing a receiver pending plaintiffs’ appeal from the judgment.

<p>Appeal from a judgment of the Equity Term.</p>

<p>Appeal from a judgment in favor of plaintiff, and from order denying motion for a new trial.</p>

<p>Appeal from judgment in favor of defendant, entered on dismissal of the complaint, and from order denying motion for a new trial.</p>

<p>Appeal from order denying motion to permit Michael E. Duffy, as receiver, etc., to intervene.</p>

<p>Appeal from a judgment in favor of plaintiffs.</p>

Appeal by the defendant from a judgment entered on the verdict of the jury in favor of the plaintiff, and from an order denying a motion for a new trial.

<p>Appeal by the defendant from a judgment entered on a verdict of the jury in favor of the plaintiff.</p>

<p>Motion for a reargument.</p>

<p>Appeal from an order of discontinuance.</p>

<p>Appeal from a judgment entered upon a verdict by direction of the court.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>