Volume 120 — New York Miscellaneous Reports

<p>Landlord and tenant — New York city — summary proceedings — right of monthly tenant to plead unreasonableness of rent — effect of Laws of 1922, chap. 664.</p> <p>Since July 1, 1920, when their term began, monthly tenants had remained in possession, always paying the same rent. When the rent for July, 1922, became due, they refused to pay, though no increase in the rent was demanded. Held, that in a summary proceeding said tenants had a right to plead as a defense that the rent demanded is unreasonable under chapter 664 of the Laws of 1922, which is a rewriting of the amendment to chapter 136 of the Laws of 1920 by chapter 434 of the Laws of 1921.</p> <p>While monthly tenants who were such on April 30, 1921, when said amendment of that year took effect and who thereafter paid three equal monthly payments of rent, could not avail themselves of the defense of unreasonableness during the following nine months, yet, after April 1, 1922, and before such tenants had again paid three equal monthly installments of rent in successive months, the defense of unreasonableness would be available, and that is the situation in which the tenants here find themselves.</p> <p>An- order in favor of the landlord and an order denying the tenants’ motion to compel the filing of a bill of particulars in accordance with the statute both reversed, the motion for a bill of particulars granted and a new trial ordered. -</p>

<p>Action for divorce.</p>

<p>Examination before trial.</p>

<p>Injunctions — contract for the purchase of water for supplying township district — when contract not authorized under proceedings taken — breach of contract by company supplying water — rights of water commissioners to bring action for an injunction restraining water company from discontinuing the supply of water — Town Law.</p> <p>Defendant, a water company, prepared a contract for supplying water to a certain portion of a township and submitted the same to the people of the district. The water district was established, commissioners appointed, and the contract made and executed pursuant to proceedings taken under sections 282-298 of the Town Law. Upon the execution of the contract defendant commenced to supply water thereunder and continued to do so until August 10, 1921, when it served notice on plaintiffs as water commissioners that it would on a certain day cancel the contract and shnt off the water unless the persons authorized by law would enter into a new contract at increased rates. The contract had not expired by its terms and is still in force.</p> <p>Plaintiffs, as water commissioners, sued for an injunction. Defendant at the trial moved for judgment on plaintiffs’ opening and on the complaint. Trial was suspended pending decision on defendant’s motion.</p> <p>In denying defendant’s motion, held, that although the provisions of sections 282-298 of the Town Law apply to the construction of a water works system and not to the purchase of water and that the contract was unauthorized as the power to purchase water cannot be inferred from a grant of power to erect water works, in a statute in which elsewhere is found express authority for the exercise of the same- powers, although in different manner, and that the town is not bound by the contract and has no rights under it, yet an unauthorized contract made by its officers may be ratified by a town, in case it could have authorized it in the first instance, and the plaintiffs as public officers have authority from the common law to bring this action and it is their duty to bring the contract into court as such power is not lodged in any other person or body, and that they have alleged a good cause of action and need not plead estoppel by reply or otherwise.</p>

Motion by plaintiff to review the action of the clerk in refusing to tax, as disbursements, two items expended by plaintiff for stenographer’s minutes, one item being for the minutes of the inquest in this action, and the other for the minutes of the testimony of a witness at a hearing in a habeas corpus proceeding having no direct legal relation to this action.

<p>Action to enforce lien for down payment on purchase of real estate.</p>

<p>Application for special panel of jurors.</p>

<p>Proceeding to settle executors’ accounts.</p>

<p>Crimes — grand larceny, first degree — variance between indictment and proof — when certificate of reasonable doubt will be granted.</p> <p>A legal conviction can be had only for the crime of which the defendant is charged by indictment and by the means therein alleged.</p> <p>The test to be applied upon a motion for a "certificate of reasonable doubt as to whether a conviction for crime should stand is whether there are questions of sufficient gravity to justify a review of them on appeal in advance of the imprisonment of the defendant.</p> <p>An indictment in the first count charged that defendant on July 22, 1921, committed grand larceny in the first degree in that he obtained from a named bank the sum of $2,000 by color and aid of false pretenses made feloniously and with intent to defraud, particularizing that on July 22, 1921, before obtaining the money, defendant represented to the bank in writing and orally that the amount owing by his firm to other banks with whom he and his firm had accounts did not exceed $2,000 when in fact he and his firm were on that day indebted to three banting institutions in the amounts respectively of $3,500, $3,000 and $3,000. The indictment by appropriate allegations charged that defendant knew such statements were false and that in reliance upon them the bank paid over to defendant and his firm the $2,000 on July 22.1921. The second count of the indictment was predicated upon the same statement in writing referred to in the first count, the veracity of which statement was attacked solely in respect to the indebtedness to the other banks and the offense was charged to have been committed on July 22, 1921. Only two statements in writing made by defendant and submitted by him to the complainant bank were proven on the trial, one in the form of an unsigned inventory and the other in which the inventory items had been transferred to a blank form supplied by the bank and signed by defendant with the name of his firm. Both statements gave the indebtedness of defendant’s firm to other banks as of May 20, 1921. An attempt to connect the oral and written statements was abandoned upon the successful objection made by defendant’s counsel, and the court upon the denial of a motion to dismiss the indictment upon the ground of a variance - between the allegations thereof and the proof supplied by the written statement submitted both statements to the jury as a foundation for the crime charged, and in his charge directed the attention of the jury to the fact that there was no statement in writing as to the amount of the indebtedness to other banks on July 22, 1921, the date stated in the indictment. Upon a motion for a certificate of reasonable doubt made after judgment had been pronounced upon a verdict finding defendant guilty of the larceny only his counsel contended that whatever oral statements were made related to the indebtedness to the other banks and were of the same character in this respect as the written one and that both, therefore, related to the ability of the defendant and his firm to pay, and that the judgment of conviction could not be sustained upon the oral statement as section 947 of the Penal Law declares: “ A purchase of property by means of a false pretense is not criminal where the false pretense relates to the purchaser’s means or ability to pay unless the pretense is made in writing and signed by the party to be charged.” Upon granting the motion, held, that the obtaining of the $2,000 was “ a purchase of property ” within the meaning of section 947 of the Penal Law which applied whether defendant obtained the money by false representations as to his financial condition or by falsely stating his ability to repay. While it was necessary in order to support the second count to show that the amount owing to the banks on May 20, 1921, was falsely stated, it was also necessary in order to support the first or larceny count to prove that the indebtedness on July 22,1921, was falsely stated. There being no written statement relating to debts existing at the latter date any representations about them were of course oral.</p> <p>Upon direct examination the defendant testified in effect that he was ignorant of the amount of the indebtedness to other banks contained in the statement submitted by him to the complainant bank on July 22, 1921. Held, that in determining whether the misstatement was due to a mistake, arose through ignorance or was an intentional and purposed statement, it was competent under the second count of the indictment to reveal like conduct of defendant at other times.</p> <p>The legitimacy of the use made of other written statements not offered in evidence, and the necessary inferences to be drawn from all the testimony concerning them, afford a proper subject for further inquiry in advance of the execution of the judgment of conviction.</p>

<p>Proceeding to settle executor’s accounts.</p>

<p>Motion to dismiss appeal and for other relief.</p>

<p>Claim for delays in construction caused by state.</p>

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

Appeal by landlord from a dismissal of his complaint to recover for the reasonable rental value of an apartment occupied by defendant, the defense actually litigated being the question of law whether the lease previously existing had become automatically renewed.

<p>Taxes — state land in New York city is exempt from taxation — when tax sale void.</p> <p>Taxes may not be imposed upon land belonging to the state (Tax Law, § 4, subd. 2) and under section 21 of the Public Lands Law a sale of state lands for unpaid taxes is void.</p> <p>On April 12,1912, the state, pursuant to chapter 746 of the Laws of 1911. acquired certain property in the city of New York and ever since has been in possession of the same as sole owner. Held, that the state in an action to remove a cloud upon title was entitled to judgment barring the city of New York from any claim for taxes assessed against the property as of October 1, 1911, but which did not become due and payable until after the state had become the owner of the property.</p>

<p>Husband and wife — common-law marriage binding — common-law wife may maintain action to annul a ceremonial marriage between her husband and another woman.</p> <p>In this state a common-law marriage is just as valid and binding upon the parties to it as a ceremonial marriage.</p> <p>An action to annul a marriage upon the ground that a former marriage of one of the parses thereto was in force at the time of the marriage sought to be annulled may be maintained by any one of the three persons concerned.</p> <p>Since July, 1906, with a brief interlude, the plaintiff herein and the principal defendant without a ceremonial marriage maintained the relation of husband and wife and were always so regarded by their acquaintances and neighbors but no issue resulted. In January, 1921, said defendant contracted a ceremonial alliance with his eodefendant, a widow, by going through a civil marriage with her in this state. Several months later both defendants went to Italy on the same ship. He testified that he has not cohabited with his codefendant either on the ship or in Italy and that after a stay there of about five months he returned alone to America and resumed relations with plaintiff, who as appeared by the testimony was not cognizant of his civil marriage with his eodefendant, who having returned from Italy knew of the relations existing between plaintiff and her common-law husband. Held, that under section 1134 of the Civil Practice Act plaintiff had the right to bring an action to annul the marriage between the codefendants for although said marriage was void plaintiff was justified in pursuing the remedy which the law afforded her of establishing by judicial decree the illegality of the second marriage and was entitled to a judgment annulling the same.</p>

<p>Practice — Statute of Limitations — complaint may be dismissed on motion by defendant before answering upon uncontroverted affidavit setting up the Statute of Limitations.</p> <p>Under the present practice a defendant before answering may by affidavit present facts constituting the defense of the Statute of Limitations to the cause of action alleged in the complaint, and where such facts are not controverted by the plaintiff’s affidavits the sufficiency of the defense may be disposed of as matter of law.</p> <p>When an action was commenced to have statements of accounts between plaintiff and defendants opened and set aside as accounts stated on the ground of fraudulent representations contained therein and to have the accounts restated and for the recovery of the amounts found due to plaintiff, there was another action pending by the same plaintiff against the same defendants to recover money alleged to be due for commissions as a salesman, over the amounts paid to plaintiff upon the said statements of the accounts between the parties. Held, that the Statute of Limitations as a defense to the cause of action pleaded in each complaint, though they were not the same, was properly presented for determination by a motion to dismiss the complaint in the second action.</p>

Motion by defendant Schenectady Holding Company, Inc., for an order directing the assignment to it of the mortgage being foreclosed herein, and for a discontinuance of the foreclosure action.

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

<p>Wills — when widow takes dower in addition to bequest — agreement that widow may occupy apartment without rent — children consenting to agreement estopped from urging that executor’s accounts be surcharged therewith — executors entitled to commissions on rents collected.</p> <p>The will of the testator after bequeathing to his wife the business which he was conducting, together with all equipment thereof, devised and bequeathed to her as long as she lived one-third of the income of any and all property, real and ; personal, of which he was seized and possessed at his death. Held, that there being no specific declaration in the will that such provisions were in lieu of the widow’s right of dower her claim therefor was neither inconsistent nor repugnant ■ to the testamentary provisions in her favor; she was, therefore, not put to an election but in addition to such provisions was entitled to dower.</p> <p>An arrangement made by the widow and four of her children was to the effect that . she was not to pay rent for an apartment occupied by her and three of said children waived their rights to any surcharge which might possibly be made against the executors on their accounting and consented that the same should be effective only to the extent of the interests of the contestants. Held, that a contestant who had acquiesced and taken part in such arrangement was estopped from urging a surcharge of an amount equal to one-fifth of the balance of the rent of the apartment occupied by the widow.</p> <p>Where upon the accounting of the executors, of which the widow was one, it appears that the rent collected for an upper apartment, exclusive of the widow’s quarantine, amounted to a certain sum, the accounts will be surcharged with the net balance of income from said apartment after deducting the disbursements for the entire building.</p> <p>The widow should have paid rent for the premises occupied by her and the accounts will be surcharged with rent calculated by consent at twenty-five dollars a month for five years and one month, the period for which the accounting was made, less the widow’s quarantine.</p> <p>In the circumstances the executors will be allowed commissions upon rents collected and are entitled to credit against any balance which may remain on hand due to any and a,ll surcharges after payment of commissions and costs.</p>

Proceeding upon the final judicial settlement of the account of Michael McCabe, as executor of the estate of Sarah A. Van Vranken, deceased, in which Ervin S. Hoag filed a claim for $1,000 and accrued interest.

<p>Appeal from a judgment of a Justice’s Court.</p>

<p>Limitation of actions — when running of statute not stayed by filing claim with debtor’s executor.</p> <p>A claim upon a judgment entered against decedent on November 8, 1901, was presented to the executor in 1921 who duly rejected it in 1922. Upon disallowing the claim, held, that under section 44 of the Civil Practice Act the judgment had become extinguished in twenty years from the date of its entry and that the filing of the claim did not stay the running of the Statute of Limitations.</p>

<p>Wills — construction — devise with condition as to rental.</p> <p>A bequest of money directed that so long as the legatee should remain a tenant in certain real property which passed to the son of testator, the residuary legatee under the will, the rent of the property should not be greater than ten dollars a month. Held, that the intention was to devise the property to the son of testator and he having accepted the devise must take it subject to the condition imposed. . . .</p>

<p>Transfer tax proceeding.</p>

<p>Proceeding to settle executors’ accounts.</p>

Motion by defendants to dismiss the complaint on the ground that it does not state a cause of action, and motion by plaintiff for an interlocutory judgment of accounting.

<p>Injunctions — purchase of Java sugar to be shipped on designated steamer — requirements of letter of credit disregarded — preliminary injunction granted purchaser against payment of draft continued upon giving undertaking and later vacated on motion — • purchaser’s right to stop payment of draft — decision on motion vacating temporary injunction not res adjudicata on the right to permanent injunction — defendant cannot recover on plaintiS’s undertaking.</p> <p>Shipments under a contract for the sale of Java sugar by defendant to plaintiff were to be made during August and September, 1920, from Java by steamer to Philadelphia, Penn. The contract also provided that should a steamer or steamers declared against it fail to arrive at the port of destination, for any cause, the defendant was to be relieved of responsibility under the contract and further that payment should be made by net cash on presentation to a bank in New York of sight draft and invoice, with bill of lading attached, with an additional provision for an irrevocable letter of credit in favor of defendant, which plaintiff immediately obtained at a New York bank. On September 29, 1920, defendant declared a certain named steamer as the one carrying the sugar, and about November seventeenth it received word indirectly that though the vessel had been damaged and had put into port for repairs the sugar was not injured. On December 13, 1920, the defendant in a letter to plaintiff explaining that the unavoidable delay of said steamer was due to some extent to her machinery, declared another steamer against the contract, stating that it carried the same quality of sugar from the same shipment from Java. Thereafter when this vessel was within a short distance of New York, its original port of destination, defendant caused it to be diverted to Philadelphia and upon its arrival there on December sixteenth, which was Saturday, presentation of a sight draft accompanied by the requisite shipping documents was made by defendant to the New York bank but payment of the draft was delayed until the following Monday on account of the lateness of the day, but in an action to restrain payment of the draft a temporary injunction was served upon the defendant and the bank on Monday before payment could be made. Upon a motion to continue the injunction the plaintiff was required to increase its undertaking to $2,500, but finally the preliminary restraining order was vacated, the draft paid by the bank and plaintiff received the sugar. Held, that whether plaintiff is liable upon the undertaking upon which defendant seeks to enforce collection, depends upon the right of plaintiff at the commencement of the action to an injunction upon the merits and upon that question the decision upon the motion vacating the temporary injunction is not res adjudicata.</p> <p>The letter of credit was a contract complete in itself but it did not follow that such a letter obtained, as here, by plaintiff pursuant to a contract requiring it to procure the same, could be amended, modified or changed without its consent; the original letter of credit when once accepted became part of the contract of salo and its terms were to be read into the sale agreement.</p> <p>Upon the findings of the court that there had been a disregard of the requirements of the letter of credit; that the payment of the draft was in violation of its terms and constituted a breach by defendant of the contract, all of which would have entitled plaintiff at the commencement of the action to a final injunction against payment of the draft, judgment will be entered accordingly.</p>

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

<p>Costs — action in alternative against two defendants — judgment recovered against one — successful defendant not entitled to costs against plaintiff — Civil Practice Act, § 213.</p> <p>The suing in the alternative of two or more persons is a form of action at law new to the practice in this state but authority therefor is found in section 213 of the Civil Practice Act.</p> <p>The trial of an action brought by invitation of section 213 of the Civil Practice Act to recover the purchase price of merchandise sold to the principal defendant through another of the defendants, as its agent, was confined to the issue of the authority of said agent, which the disclosed principal repudiated. As a part of the plaintiff’s case witnesses produced by the alleged agent were sworn and examined by its attorney, and the verdict of the jury was in favor of the plaintiff and the defendant, the alleged agent. The answer of the alleged agent contained no prayer for costs or other relief against the unsuccessful defendant upon whom the answer was not served.</p> <p>The application of the successful defendant made under section 1476 of the Civil Practice Act for costs against the plaintiff will be denied as a matter of discretion.</p>

<p>Application for mandamus.</p>

<p>Contempt proceeding.</p>

<p>Insurance — burglary — warranty of occupancy — concealment of fact of subletting part of floor ■ — breach of warranty — no evidence of violence in making entry — when verdict for plaintiffs set aside.</p> <p>Compliance with the conditions and provisions in a policy of burglary insurance is a condition precedent that must be established by the plaintiffs before there can be a recovery.</p> <p>Plaintiffs doing business on the fourth floor of a building took out a mercantile open stock policy of insurance “ For all loss by the felonious taking of property, from within the promises, by any person or persons who shall have made entry into the premises at any time during the day or night when the promises are not actually open for the transaction of business by the use of actual force and violence of which there should be visible marks made by tools or explosives upon tho premises at tho place of such entry.” One of the warranties in reliance upon which tho policy issued was “ that the assured occupies the 4th floor,” and another was “ the business conducted by the assured in the premises is that of cloaks and suits,” but nothing was stated in the policy to tho effect that the assured occupied only the front half of said floor. Held, that plaintiffs’ concealment of the fact that when the policy was issued the rear half of the fourth floor was under a sublease to another concern conducting an entirely different business, was a clear violation of the warranty that plaintiffs occupied said floor.</p> <p>In an action upon the policy it appeared that the part of the premises occupied by the subtenant was divided from those of the plaintiffs by a hallway created by thorn entirely within and running across the premises leased to them, the entrance to which was from two elevators and a door loading from the stairs of the building. Plaintiffs’ stock room from which goods were stolon bordered on this hallway and the door loading therefrom into plaintiffs’ premises was not locked. At night the doors of the elevators were secured by iron bars and a Fox lock and the door to the common stairway was secured with such a lock. In order to remove the bars from the elevators one would have to enter the hallway created by plaintiffs from the stairway. Keys to the door at the head of the stairway were in the possession of the employees of the subtenant as well as those of the tenant and on the morning that the burglary was discovered an employee of the subtenant was the first to appear and he opened the premises. The only visible marks of violence or force as shown by plaintiffs were on the door leading from the interior private hallway to the stockroom and the adjacent wire netting which composed the wall of said room. Held, that in the absence . of proof that there were visible marks of violence at the place of entry into the fourth, floor there could be no recovery even aside from the question of the violation of the warranty.</p> <p>A verdict in favor of plaintiffs will be set aside as against the weight of evidence and a motion to dismiss the complaint made at the end of the whole case will be granted.</p>

<p>Motion to consolidate actions.</p>

<p>Replevin action.</p>

<p>Extradition — governor not bound by refusal of his predecessor — evidence — writ of habeas corpus dismissed.</p> <p>The governor of the state, notwithstanding the refusal of his predecessor in office to grant extradition, has ample authority to issue a new warrant for the extradition of an alleged fugitive from justice.</p> <p>The conclusions of the governor upon which demand is made evinced by the warrant of arrest must stand in a habeas corpus proceeding unless clearly overthrown.</p> <p>Where upon, habeas corpus the testimony as to whether the relator was absent from the demanding state on the date when it is charged that the crime was committed by him is so conflicting that a reasonable inference can be drawn that he was within that state on the date in question, it must be held that the ■ presumption arising on the face of the warrant was not overcome and the writ will, therefore, be dismissed and the relator, who was positively identified by the complaining witness as the person who committed the alleged crime, will be delivered up for trial.</p>

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

<p>Motion to compel return of papers.</p>

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

Motion by plaintiff for an order confirming an award of arbitrators chosen by the parties hereto, pursuant to the provisions of article 84 of the Civil Practice Act, and directing judgment in accordance with the terms thereof.

<p>Habeas corpus — practice — state institutions — writ must be returnable before Supreme Court in county where person detained.</p> <p>Under section 1239 of the Civil Practice Act a writ of habeas corpus directed to the superintendent of the New York State Training School for Girls at Hudson, N. Y., where the relator is detained, must be made returnable before a justice of the Supreme Court in Columbia county or before the county judge of that county.</p> <p>Where, therefore, the writ was made returnable at a Special Term of the Supreme Court held in the county of Albany, the writ will be dismissed upon the prelimi- . nary objection of the attorney-general that relator had failed to comply with section 1239 of the Civil Practice Act.</p>

<p>Certiorari — New York city — board of standards and appeals — no power to reopen its determination — zoning law — when appeal from determination of superintendent of buildings once decided should not be reopened so as to grant application to erect garage.</p> <p>The jurisdiction of the board of standards and appeals, a quasi judicial body performing not a single administrative or legislative act, is limited to hearing and determining appeals, and said board is without power to reopen and rehear a proceeding which has once been determined by it.</p> <p>After the superintendent of buildings of the city of New York had refused a permit for the erection or extension of a public garage to accommodate more than five automobiles the interveners herein, who did not have the consent of the owners of eighty per cent of the frontage within the district affected by the proposed garage, appealed to the board of standards and appeals. A committee of said board thereafter appointed to examine the premises in question reported that the appeal should not be granted for the reason that the property in question “ is situated directly opposite an extension of the Swedish Hospital and that a garage should not be permitted opposite to a ward for sick and injured people; this fact justifies this Board in withholding its approval.” Thereafter and in accordance with one of its rules, which provided a method for the final disposition or termination of pending appeals, the said board by a vote of four to three adopted a resolution affirming the decision of the superintendent of buildings. Later said board, without any reason disclosed by its record, granted the intervener’s application to reopen the proceeding, a notice of which having been served upon the Swedish Hospital it again appeared and objected to the proceeding upon the ground, among others, that the board having denied the application for the permit was without power to reopen the proceeding. Upon further consideration the board passed a resolution making a variation in the application of the “ use district regulations of the building zone resolution ” and granted the application for the permit. Upon a petition setting forth all the facts a writ of certiorari was issued requiring the board of appeals to certify its proceedings to the court for review, and thereafter the interveners applied for and were given leave to intervene in the proceeding. Upon granting the motion of the relator, the Swedish Hospital, to sustain the writ of certiorari, and denying that of respondent to dismiss the writ, held, that the action of the board in granting the intervener’s application for leave to reopen the proceeding was in excess of its powers.</p> <p>If the contention of the board be sound, that it had power not only to reopen the proceeding but to grant the application for a permit for the garage under section 7-a and section 20 of the zoning resolution, which has the force of a statute, still the facts and circumstances sufficient to justify the variation made by the board should be shown in the record if the board intended to rely upon the provisions of the zoning resolution, but none such were shown here.</p>

<p>Injunctions — unfair competition — imitation of plaintifl’s taxicabs in color and design.</p> <p>Where after the plaintiff corporation by the use of a characteristic color scheme and d.-ess for its taxicabs had built up a successful business and popularized the name “ Fellow Cabs ” the use by defendant of that or any color scheme and dress approximating it which would bf calculated to mislead the public and divert trade from plaintiff will be restrained by an injunction pendente lite.</p>

1 Motion by defendants to dismiss complaint upon the ground that it does not state facts sufficient to constitute a cause of action. Edward Lynn, for plaintiff.

<p>Practice — negligence — when motion to vacate notice for examination of defendants before trial will be denied.</p> <p>Where the defendants in a negligence action axe chaxged with supplying the plaintiff with poisonous drugs used by them in compounding a prescription of plaintiff’s physician instead of the harmless medicaments as directed, an order for the examination of defendants before trial may be granted.</p> <p>A motion to vacate the notice of such examination will be denied but the examination must be limited to adducing evidence in support of certain allegations of the complaint.</p>

Motion to strike from answer two counterclaims contained therein on the grounds: (a) That same are improperly united; (b) that they are irrelevant, redundant and tend to prejudice and embarrass a fair trial of this action; (c) that neither of such counterclaims is one which may be properly introduced in the action.

<p>Real property — tax deed — lease by life tenant to his son if he pay taxes — sale for unpaid taxes — purchase of certificate by son’s wife — life tenant may have such conveyance set aside.</p> <p>Where an obligation rests upon one in respect of the property of another, the violation or omission of which results in a sale of the property, the party owing the duty is disqualified from becoming a purchaser at such sale on his own account.</p> <p>In 1914 the owner of a small house and lot died intestate survived by her husband and four children. In 1918 the husband as life tenant leased the property to his son, one of the tenants in common, upon condition that he pay the taxes and keep the building in repair, and ever since the son and his wife have been and now are residing upon the property which in due time was sold for nonpayment of the taxes for 1919. Before the expiration of the time to redeem, the son’s wife bought the certificate of sale and took an assignment thereof. In an action against the son’s wife, to whom when the time to redeem had expired the county treasurer deeded the property, to have said conveyance declared void and canceled of record, held, that the acts of defendant as alleged and proved constituted a constructive fraud upon the plaintiff, the life tenant, as well as on the others interested, even if defendant did not so intend, and that plaintiff was entitled to judgment setting aside the deed, with costs.</p>

<p>Motion to vacate order fixing a transfer tax.</p>

<p>Surrogates — jurisdiction, to determine title to chattels claimed as part of estate — when gift by testator not established.</p> <p>Upon an application by two of three executors under section 228 of the Surrogate’s Court Act for instruction as to the custody of a diamond ring, pearl necklace, diamond earrings and two brooches alleged to belong to the estate, the third executor while denying possession of or any knowledge concerning the two brooches claimed that testatrix in her lifetime gave him the pearl necklace and the diamond earrings. Held, that the surrogate had jurisdiction to try the question of title and determine the validity of the alleged gift. Though the pearl necklace was specifically bequeathed to one of the petitioning executors, the one who claimed it as a gift from testatrix testified that he sold it and had pawned the diamond earrings which were specifically bequeathed to him by the testatrix. Upon consideration of the testimony, which was consistent, and the provisions of the will, held, that no valid gift as claimed by the said executor had been established and that the pearl necklace and the diamond earrings belonged to the estate.</p> <p>Order granted directing the respondent executor to turn over the pawn ticket for the diamond earrings to the joint control of the three executors pending the filing of any claims against the estate, the respondent to deposit the proceeds of the sale of the pearl necklace in the joint custody of the three executors.</p>

<p>Wills — construction — when bequest to issue of children means issue of children dying before testator — when precatory clause does not create charge on fund.</p> <p>The will of testator, who left him surviving three sons and a sister, directed the equal division of his residuary estate among his sons and their respective issue. Only one of the sons has issue, a daughter, who is a minor, and no issue of any deceased sons survived the testator. The same paragraph of the will provided that the shares intended for the issue of any son or sons “ who shall have predeceased me shall vest immediately in such issue per stirpes ” and in a subdivision of the same paragraph testator created a life estate in §300,000 for the benefit of his widow with direction that after her death the trust fund be divided into as many parts as he should leave sons or the issue of deceased sons him surviving and then testator proceeded to define the term “ issue ” as “ a unit entitled to represent the aggregate issue of any deceased son of mine.” Held, that testator’s granddaughter was not entitled to share in the residue with his three sons.</p> <p>It appeared that testator shortly before his death had advanced §3,000 to his said sister for her support and maintenance and that after his death his sons contributed to her support until she died. Held, that a charge in the will to the fund to take care of their father’s said sister during their lives should be construed merely as an expression of a request or desire of the testator and created no trust or charge upon the residuary estate, the gift of which to the sons was absolute and unqualified.</p>

<p>Wills — construction — trust fund created for widow in lieu of dower — election by widow to take dower — acceleration of remainder of trust — when accumulation of income void — charitable uses — cy pres doctrine —retention of fund within jurisdiction of court.</p> <p>The residuary estate of testator, who was born, in Asia Minor, was bequeathed to trustees in trust to hold, invest and reinvest, collect the income thereof and pay therefrom to testator’s wife during her lifetime 83,000 in equal quarter yearly payments. Whenever the annual revenue from the estate was insufficient to yield that amount the trustees were authorized and directed to provide the deficiency ont of the principal of the estate. Upon the death of the wife the entire principal of the estate including any accumulated income was devised and bequeathed to the “ American Board of Commissioners for Foreign Missions,” a Massachusetts corporation, duly authorized by the laws of New York to take personal property by bequest, upon condition that the corpus of the estate be segregated as the “ John B. Donchian Foundation Fund ” and that the income therefrom be expended in the city of testator’s birth and in two other cities in Asia Minor for the charitable, educational, religious or eleemosynary purposes of asylums, hospitals, schools and churches in said cities. The will declared that “ the provisions hereinbefore made for my wife shall be in lieu of all her right of dower in my estate and are conditional upon her consent that the proceeds of all my life insurance policies wherein she is designated as beneficiary be transferred to my executors aud trustees.” The widow elected to take dower and refused to turn over to the estate the life insurance money which exceeded in amount 850,000. Held, that under the language of the clause declaring the provisions made for testator’s wife should be in lieu of dower, etc., and by her election to reject the benefits given to her by the will she forfeited not only the trust income but also a legacy under another clause of the will, and in consequence the life estate given to her fell, the disposition as to the excess income over §8,000 failed, and the direction for the accumulation of income was void.</p> <p>The remainder was, therefore, accelerated and one-half thereof should he paid after the deduction of debts to the “ American Board of Commissioners for Foreign Missions,” the bequest to it iu excess of one-half the estate being invalid under section 17 of the Decedent Estate Law.</p> <p>In opposition to extrinsic testimony held insufficient to establish the impossibility of compliance with the conditions of the gift to the American Board it submitted proof that the suspension of its activities had been temporary only, due to the recent war with Greece, that many Christians still remain in the cities mentioned in the trust and that the representatives of the present Turkish government have extended assurances of the speedy restoration of the former status of said board and other foreign philanthropic and religious missionary societies. Held, that in the circumstances the gift was not void ab initio, neither did it lapse. If the improbable situation be ultimately created where the objects of the gift cannot be carried out the aid of the Supreme Court of this state may be invoked under the cy pres doctrine to apply the income to some cognate purpose.</p> <p>The conditions in the will with regard to the investment and retention of the trust fund in the United States must be fully complied with, and testator having died a resident of New York the fund will be retained there subject to the possible direction of the Supreme Court as to the application of the income to other similar purposes.</p> <p>The power of sale given the executors in order to convert and distribute the estate in cash, as directed by the will, was not affected by the widow’s election.</p>

Appeal by the landlord from a final order in summary proceedings in favor of the tenant, dismissing the petition after a trial in the Municipal Court of the city of New York, borough of Manhattan, third district.

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

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

<p>Attorney and client — executors and administrators — action to recover damages for death of decedent — contingent fee agreement — substitution of attorneys — agreement with original attorney fixing his compensation ■— subsequent recovery — infants — rights of attorney in the judgment — appointment of referee to decide on reasonable fee — Decedent Estate Law, § 133.</p> <p>An agreement for contingent compensation made between attorney and client during the existence of such relationship will be carefully scrutinized by the court and declared invalid unless the attorney shows that the agreement is fair and reasonable and was well understood by the client.</p> <p>An attorney retained to institute and prosecute, for a contingent fee of fifty per cent of the recovery, an action to be brought by an administratrix to recover damages for causing the death of her husband by wrongful act, caused the summons to be served in December, 1912, and continued as the attorney until November 10, 1915, on which date, the administratrix having previously expressed a desire for a change of attorneys, an order of substitution was made upon the written consent of the administratrix, the attorney and the attorney proposed to be substituted dated October 15, 1915, and acknowledged by the administratrix on November 4, 1915. The order for substitution provided that the first attorney should have a lien on the cause of action to the extent of seventeen and one-half per cent of any sum paid in settlement or recovered by judgment or otherwise. The original plaintiff died and the present plaintiff, who was duly appointed administrator de bonis non, retained new attorneys who caused the action to be revived. Afterward the present attorney was substituted and he secured a large verdict including interest from the date of the death of the decedent. Upon motion of the present attorney to have vacated or modified the order fixing the lien of the attorney who began the action, held, that when the respondent consented to the substitution and accepted in lieu of his original retainer the agreement, confirmed by the court, that he should have a lien on the cause of action to the extent of seventeen and one-half per cent of any recovery or settlement, he gave up his rights under his original retainer and said agreement was subject to the amendment to section 1093 of the Code of Civil Procedure (now Decedent Estate Law, § 133) which went into effect September 1, 1915, and contains no clause making an exception in cases of pending actions.</p> <p>The said agreement for a lien so far as it affects the share to which the original administratrix would have been entitled had she lived, provided it was fair and reasonable and understood by her, was binding and her death did not affect the rights of respondent with respect to said share.</p> <p>So far as said agreement affects the shares of infants entitled to share in the distribution it is not binding and the court must determine the reasonable value of respondent’s services and fix his compensation and lien with respect to such shares accordingly, but as this should not be done upon affidavits the court will appoint a referee to take proof as to whether the agreement which resulted in the order of November 10,1915, was fair and reasonable and whether its provisions were known to and understood by the administratrix and also upon the question of the reasonable value of respondent’s services without regard to such agreement and to report the same to the court with his opinion thereon and in the meantime the decision upon the present motion will be held in abeyance.</p>

<p>Motion to compel defendant to admit certain facts.</p>

<p>Certiorari proceedings to review assessments for 1920, 1921 and 1922.</p>

<p>Action on bonds.</p>

<p>Action for partition.</p>

<p>Claim for injuries by collapse of bridge over canal.</p>

<p>Claims against the state — highways — no recovery because of trivial defect in state highway.</p> <p>The state cannot, be held responsible for trivial defects in state highways.</p> <p>Those who drive their vehicles upon state highways must abstain from such degrees of speed as might turn any little harmless defect in the roadbed into a menace to their safety.</p> <p>At a point in a state highway where it dips into a valley by a steep grade and at the foot thereof immediately rises by a like grade on the opposite side, a thin sheet or layer of sand and gravel had been washed out onto and over the brick which formed part of the highway. This deposit, smooth, without ruts and as hard as cement, was very thin in its thickest place and extended out upon the highway gradually diminishing in thickness to nothing., Claimant testified that when her automobile hit this deposit it turned to the left, then to the right, then to the left again, then collided with another automobile and in spite of the collision tore on across the road and over an embankment at the bottom of the valley. It appeared that though claimant had run an automobile for several years she had run the one in question but very little, if any, before the day of the accident, having purchased it within a week of that time. Held, that the only conclusion to be drawn was that claimant came down the hill at such a high rate of speed that she lost control of her automobile and that this loss of control and not the thin, hard deposit of material on the brick roadway was the cause of the accident, and her claim for damages to person and property will be dismissed upon the merits, on the ground that the defect in the highway complained of was not only trivial but did not even contribute to the accident.</p>

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

<p>Appeal from a judgment rendered in favor of the plaintiff after a trial before a court and jury in the City Court of the city of New York on the 12th day of October, 1922, for the sum of $604.67.</p>

<p>Taxpayer's action to restrain ofFteals of the city of Corning from removing the clock tower from Clock Tower square,</p>

<p>Guaranty and suretyship — undertaking giivsa to nucure releí from arrest in breach of promise oraii; — action os ;:aertaking— answer — ■ defense alleging that body es?elusion w¡ not properly returned. a: that later one was not timoly siristx^n out.</p> <p>One A. in an action for breach of promise to marry having been arrested pursue .. : to an order granted by a justice of the Supreme Court was released upon giving an undertaking executed by a surety company, the defendant in this action. A judgment was duly rendered in favor of the plaintiff in the breach of promise action and on the same day that it was docketed in the proper county clerk’s office an execution against the property of said A. was duly issued to the sheriff of said county and by him returned nulla bona. Subsequently an execution against the person of said A. was issued to the same sheriff and more than fifteen days after its receipt was returned by him to the effect that said A. could not be found within said county. The complaint in this action upon the undertaking sets forth the facts in strict compliance with section 870 of the Civil Practice Act. The answer of the defendant surety company alleged as an affirmative defense that the execution against A.’s property was returned by the sheriff on or about December 1, 1922, and that on the next day an execution against his person .was issued to said sheriff who on January 30, 1923, returned said execution but did not return it “ not found ” as required by section 597 of the former Code of Civil Procedure and by section 871 of the Civil Practice Act in order to authorize the bringing of an action against the defendant as bail under the undertaking in suit as prescribed by law. The defense concluded with the allegation that on or about February 6, 1923, a further pretended execution was issued to the sheriff and more than fifteen days thereafter returned by said sheriff “ not found ” but that the said alleged execution was wholly without force or effect to revive the cause of action against the defendant upon its undertaking. Held, that said allegations did not constitute a defense to the cause of action alleged in the complaint and a motion to strike the affirmative defense from the answer will be granted.</p> <p>Except as indicated in the answer that the first body execution was not returned “ not found ” the pleadings did not disclose why the plaintiff herein did not avail herself of said execution, but assuming that a defective return thereof had been sufficiently alleged, there was no objection to the issuance of a second body execution after the return of a prior one which was improperly issued or returned.</p> <p>The defenses available to the bail are set forth in section 873 of the Civil Practice .Act but nothing therein requires the issuance of a body execution within ten days after the return of a property execution.nor does section 846 of the Civil Practice Act discharge a defendant who is under arrest for failure to issue the - body execution within said time limit.</p> <p>Even if said section 846 were applicable to the ease at bar, the omission to issue the body execution within ten days after the return of the property execution was excusable.</p>

The county judge, being disqualified by reason of relationship to one of the parties, certified the appeal to the Supreme Court.

<p>Application for writ of habeas corpus.</p>

<p>Application for certificate of reasonable doubt.</p>

<p>Telegraphs and telephones — news tickers — right of company to place wires in streets of New York city — municipal consent unnecessary — contract permitting use of streets — suit by company to rescind contract because of duress, sustained — when no waiver of rights prior to contract — validity of original franchise declared — equity.</p> <p>Plaintiff was incorporated in 1882 under the “ Telegraph Act ” (Laws of 1848, chap. 265) and the acts amendatory thereof and supplemental thereto. Its business is to send out news by tickers electrically operated affecting world affairs, sporting events and similar activities. For nearly ten years its wires which spanned various streets in the city of New York were earned overhead on poles and over housetops until by direction of the city the wires were placed underground. Held, that under the decision in Holmes Electrical Protective Co. v. Williams, 228 N. Y. 407, the plaintiff was a telegraph company and a “ secondary franchise ” from the city was not necessary in order that plaintiff might carry on its business.</p> <p>In January, 1912, upon the opinion of the corporation counsel that the plaintiff was operating in the streets of the city either without or under no greater authority than a permit or license revocable at will, the board of estimate and apportionment adopted a resolution requiring plaintiff, if it desired to continue business, to petition said board for a franchise on or before a certain date. Accordingly, plaintiff filed a petition by which without waiving its legal rights and without admitting any legal obligation on its part to require the consent of the city to the use of the streets, plaintiff sought the consent and approval of said board to the continuance of its business and the continued use and occupation of the streets for the maintenance and operation of its system of wires and cables. The saving clauses in said petition and in a contract subsequently entered into between plaintiff and the city showed the intention of the parties was that the court should pass upon the question of the validity of the contract without prejudice to any rights which plaintiff might have theretofore acquired, if any, to operate a telephone, telegraph or ticker business. Plaintiff’s attitude toward entering into the contract was shown by various protests made during the negotiations leading up to its execution. In a suit in equity to establish plaintiff’s franchise, to restrain any interference with the enjoyment or operation thereof, to require the city authorities to grant necessary street permits and to have set aside and declared null and void said contract between the city and plaintiff, held, that said contract was void, but if plaintiff had received any substantial rights or privileges thereunder greater than were granted by its original franchise the city might by proper action or proceeding protect its rights.</p> <p>The plaintiff having been given its choice by the city to either enter into said contract or discontinue its business the contract was not voluntarily made and plaintiff was entitled to judgment for moneys paid by it to the city as a result of the contract but without interest in view of the waiver and release contained in a provision of the contract.</p> <p>The recovery of said moneys and the return of the bonds deposited by plaintiff being merely incidental to the main object of the action, section 261 of the Greater New York charter did not apply.</p>

<p>Action for specific performance of contract to sell land.</p>

<p>Probate proceeding.</p>

<p>Probate proceeding.</p>

<p>Contracts — call on stock must be exercised within a reasonable time.</p> <p>Where plaintiffs under a call executed by defendant had a right to exercise the same by demanding on one day’s notice, except last day, a certain number of shares of the common stock of a named corporation at a stated price per share, at any time after the date and delivery of the call, such right must be exercised within a reasonable time.</p> <p>Where the optional call was not exercised "until over three years and five months after its date the defendant in an action upon the contract was entitled to judgment.</p>

<p>Motion to set aside the service of the summons herein.</p>