Volume 121 — New York Miscellaneous Reports

<p>Transfer tax — appraisal of interest in business — method of valuation — good will — executors’ commissions and widow’s allowance to be deducted.</p> <p>Where a will declares that certain provisions for testator’s wife “ are made and are to be accepted by her in lieu of dower ” and the widow accepts such provisions, the transfer tax appraiser was correct in not making an allowance for dower.</p> <p>While there is no hard and fast rule for ascertaining the value of the good will of a business, the approved method is to obtain the average yearly net profit extending over a period of years after deducting interest at six per cent on the amount of capital invested each year and then to take a number of years’ purchase of the balance, but in each instance the particular circumstances must be given consideration.</p> <p>The transfer tax appraiser in fixing the value of certain shares of an unlisted corporate stock of which no sales appeared to have been made, added to the value of the net assets of the corporation the value of the good will of its business and divided the result by the number of shares of stock. Held, that the appraisal of the good will based upon an average yearly profit for a period of seven years, including the years 1916-1919, inclusive, which showed extraordinary profits owing to the World War, was not a fair valuation; a more equitable result would follow if the profits for the years 1910-1921, inclusive, were taken as a basis for the average per annum profit and a three years’ purchase of that result obtained; interest on the whole capital invested in each of the years of which the average is taken should be deducted from the profits of that year.</p> <p>Under section 226 of the Tax Law a deduction was allowable for executors’ commissions although each of the executors was given a legacy in lieu of his commissions.</p> <p>The widow’s exemption of $150 should have been deducted before fixing the transfer tax.</p> <p>Order fixing tax reversed and the matter remitted to the appraiser to proceed in accordance with the opinion of the court.</p>

<p>Accounting — contract for-the manufacture of rifles — charge of fraud not sustained — agency disproved. v</p> <p>The Remington Arms Company, formed in April, 1915, for the purpose of pro- - viding extra facilities for the manufacture of rifles for the British government, in order to carry out a contract to manufacture for said government a large number of Enfield rifles, began the construction and equipment of a plant at Eddystone, Penn. The complaint in an action brought by the British government alleged that the Remington Company employed the defendant as its agent to purchase the machinery, materials and equipment of the new plant for a compensation of five per cent of the actual cost of the same; that as such agent defendant made large and numerous purchases and knowingly rendered false and fraudulent statements showing the costs to be greatly in excess of what they were; that the Remington Company, relying upon said statements in the belief that they were true, paid to the defendant certain sums of money. The complaint sets forth the assignment by the Remington Company to plaintiff of all sums of money due to said company from the defendant, and the relief asked was that all of the accounts and statements rendered by defendant to plaintiff’s assignor be adjudged fraudulent and void and that defendant be ■ required to account,- and that plaintiff have a decree against defendant for the amount of defendant’s charges for purchases above the actual cost of said purchases to defendant plus five per cent compensation based upon said actual cost to the defendant. The answer was a general denial. Held, that both the documentary evidence and the oral testimony failed to support the charge of fraud against the defendant; that the claim of plaintiff that defendant acted as agent of the Remington Company on a commission basis was satisfactorily disproved by the testimony concerning an interview on April 9, 1915, between the manager of the Remington Company, its expert, and the vice-president of defendant, together with a confirmatory letter sent by defendant’s vice-president to the Remington Company the day following said interview, and by the manner of carrying out the numerous transactions between the parties. Judgment directed in favor of the defendant.</p>

<p>Action to rescind contract.</p>

<p>Suit for specific performance.</p>

<p>Practice — when court will entertain jurisdiction of cause of action arising without the state between non-resid >nt parties — railroads.</p> <p>Plaintiffs, residents of New Jersey, seek to recover damages to two carloads of fruit shipped from California to Westfield, N. J., over defendant’s railroad. The contract was made without the state of New York and the bill of lading provided for transportation in part over two railroads in the state of New York. Defendant is a foreign corporation with offices in the city of New York. Defendant moves to set aside service of process upon it. Held, that while it is the general rule that the courts of this state will refuse to entertain jurisdiction of a cause of action arising without the state where both parties are non-residents, yet as defendant was doing business in this state and part of the contract was performed in this state jurisdiction will not be refused and defendant’s motion will be denied.</p>

<p>Application for construction of a will.</p>

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

<p>Wills — bequest to charity — -inability of corporation to use gift as directed — disposition of legacy— cy-pres doctrine.</p> <p>Where a corporation, the donee of a gift for- charitable uses, is incapable of effectuating the public trust imposed by its charter the court will not allow the gift to fail for want of a donee.</p> <p>A domestic charitable institution duly incorporated in 1863 was engaged in the work of operating a medical college and hospital in the city of New York until 1919, when it lost its real property by a foreclosure action, since which time said corporation has not been operating and carrying out its charter powers. Held, that a gift of $5,000 by the will of a- testatrix, who died in 1921, for the purposes imposed by the charter of said corporation, should be’ paid to the treasurer of the county wherein testatrix died, to await the outcome of a pending action brought by said corporation to set aside the deed of its real property to the defendant in that action, a newly-organized corporation, which operates a hospital in said real property.</p> <p>The plaintiff in said action, should it recover its former real property and again become an effective charitable corporation, would be entitled to receive the legacy, and should it fail in the action, the aid of the Supreme Court may be invoked to apply the legacy to some like charitable purpose under the doctrine of cy-pres.</p>

Appeal by defendant from judgment of the Municipal Court of the city of New York, borough of Brooklyn, fifth district, after trial without a jury.

<p>Evidence — trial — failure to object to incompetent evidence — power of court to strike out such evidence on motion — pleading — when new trial granted.</p> <p>A verdict predicated on evidence in whole or in part inherently bad is no better than one based on no evidence at all.</p> <p>The court cannot, of its own motion; exclude incompetent evidence not objected to.</p> <p>Plaintiff sued defendant for breach of contract in failing to furnish competent nurses and proper facilities and care during her confinement. The complaint further alleged that the nurses were negligent in applying a liquid which burned her. Upon the trial without objection the plaintiff and her physician testified that the nurse who applied the liquid admitted some time thereafter that she had made a mistake and had used lysol instead of liquid soap. Upon the resumption of the trial defendant moved to strike out the admission referred to. Decision was reserved and exception noted. Defendant now moves to dismiss the complaint. Held, that the evidence was incompetent and the motion to strike it out should have been granted; that the allegation of negligence did not change the character of the action from contract to tort; that in furtherance of justice a new trial is granted and defendant’s motion to dismiss the complaint denied.</p>

<p>Supplementary proceedings — judgment of Municipal Court of the city of New York — execution issued to city marshal and returned unsatisfied — when justice of Supreme Court has no jurisdiction.</p> <p>Supplementary proceedings were instituted before a justice of the Supreme Court in Bangs county upon a judgment rendered in the Municipal Court of the city of New York upon which execution had been issued to a city marshal and returned unsatisfied. Judgment had not been docketed in the county clerk’s office of Bangs county nor execution issued to the sheriff of that county, the alleged residence of the judgment debtor. Application is now made to punish the judgment debtor for contempt. Held, that the justice of the Supreme Court sitting in Bangs county had no authority to entertain the supplementary proceedings and that the original order for the examination of the judgment debtor was void and that the debtor was not in contempt for disobeying it.</p>

<p>Application to confirm report of commission.</p>

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

<p>Motion for judgment on the complaint under rule 106.</p>

<p>Wills — construction — devise — power of sale in all persons interested — when power of alienation not suspended — vested remainders.</p> <p>Where, under the terms of a will, a deed executed by life tenants, remaindermen or any others would convey an absolute title in fee, there is no restraint upon alienation, or violation of the rule against perpetuities.</p> <p>Testator by his will devised all his real estate to J., M. and C. for life, providing, however, that said real estate or any part thereof might be sold at any time by all parties interested joining voluntarily in the deed and further providing that upon the death of any one of the devisees his or her one-third share should go absolutely in fee to the children of such devisee, but if there should be no children then said one-third share should go to the two surviving devisees for life, and after the death of any two of the devisees named in the will the survivor to take all the real estate absolutely excepting such portions as may go to the children of a deceased devisee as provided in the will. Testator specially forbid the bringing of any partition action. J. predeceased testator. M. brings this action for the construction of the will against C. and against H., who is an infant daughter of said C. and the only issue of the devisees named in the clause of the will above referred to. Held, that as the will speaks as of the time of the death of testator and owing to the death of J. before the testator there were only two lives in being at the time of testator’s death during which the power of alienation could have been suspended, but even if J. had not predeceased testator, the power of alienation would not have been suspended in view of the provisions'., in the will providing for the sale of the real estate at any time by the parties interested voluntarily joining in the deed; that upon H.’s birth her estate became vested under section 40. of the Real Property Law and she is one of the parties interested under the provisions of the will and necessarily must be one of the grantors in any deed of the property; that J. having died without issue before the testator the one-third of the real estate devised to. him lapsed and one-third of testator’s real estate was undisposed of by the will and descended to plaintiff, testator’s sister, and the defendant C., as testator’s only surviving heirs at law, and their title to the one-third interest is unaffected by the will and either has a right notwithstanding the prohibition in the will against partition to bring such an action for the partition of the entire real estate.</p>

<p>Verdict — ejectment — pleading — equitable defenses — when the word “ owner ” means an owner in fee —■ Rules of Civil Practice, rule 241.</p> <p>In order that an equitable estate may be a defense to an action in ejectment it must first ripen into a legal title.</p> <p>Plaintiff derived title from defendant by a warranty deed. At the time of the conveyance defendant occupied the premises and is still in possession. Plaintiff sued in ejectment. Defendant set up a defense that the deed was given as security for an indebtedness and for future advances, and that defendant was to have possession and management of said premises and that he is the owner and in possession of the premises with the consent of the plaintiff. The jury returned a verdict that the plaintiff is “ the owner of the premises in question.” The defendant moves to set aside the verdict on the ground that the deed was intended to be a mortgage; that the plaintiff was a party to a fraudulent transfer and that the court erred in refusing to charge “ if the plaintiff was a party to a fraudulent scheme and received the deed for the purpose of defrauding the defendant’s creditors then he cannot have a verdict ” and that the verdict was not in the form required by rule 241 of the Rules of Civil Practice. Held, that as the answer did not ask to reform the deed or to redeem the land the defendant did not properly set up an equitable defense; that the defense of fraudulent-intent to- defraud creditors is only available to the creditors; that the word “ owner ” when applied to real estate without any qualifying words means prima facie an owner in fee; that the verdict is clear and should stand, and defendant’s motion is denied.</p>

<p>Process — resident defendant avoiding service of summons within the state may be served by substituted service or by publication — Civil Practice Act, §§ 230, 232(2).</p> <p>Where defendant, residing within the state at a known residence, served with a summons by substituted service, moves to vacate the order permitting such service on the ground that the court had no jurisdiction on the theory that she ■ was avoiding service and that the service must be made by publication as section 230 of the Civil Practice Act applies only to cases where the place of defendant’s sojourn cannot be ascertained, her motion will be denied as substituted service was authorized as well as service by publication under subdivision 2, section 232 of the Civil Practice Act.</p>

<p>Suit to reform a lease.</p>

<p>Judgments — docket — name of judgment debtor — ■ right of subsequent purchasers to rely upon the record as it appears.</p> <p>On July 6, 1916, judgment was docketed in a county clerk’s office against Bess Hedges. On July 12, 1916, an action was commenced for the foreclosure of a mortgage covering premises formerly owned by Mary Elizabeth Hedges and the property was sold and the referee’s deed recorded in January, 1917. Plaintiff, the owner, seeks to bar defendants from any claim or incumbrance upon the premises on their contention that Bess Hedges and Mary Elizabeth Hedges were identical and that the judgment was properly docketed. Held, that subsequent purchasers are bound by what the record contains and have a right to rely upon the record as it appears; that plaintiff in searching the records was not bound to ascertain whether a judgment recorded against Bess Hedges was against the same person against whom a judgment was obtained wherein the defendant was described as “ Elizabeth Hedges, also known as Bess Hedges; ” that the record must conclusively create notice or purchasers will not be held to have had constructive notice, and that the property owned by Mary Elizabeth Hedges was not affected by the judgment against Bess Hedges.</p>

<p>Suit for specific performance.</p>

<p>Accounting proceeding.</p>

<p>Seamen — right to maintain action for negligence and for maintenance and cure —• lack of proper appliances — verdict for plaintiff sustained — Merchant Marine Act, 1920, chap. 260, § 33; 41 U. S. Stat. at Large, 1007 — Employers’ Liability Act, 36 U. S. Stat. at Large, 66, chap. 149.</p> <p>The Merchant Marine Act as amended in 1920 (chap. 250, sec. 33; 41 U. S. Stat. at Large, 1007), rendered applicable in an action by a seaman for personal injuries the provisions of the Federal Employers’ Liability Act (35 U. S. Stat. at Large, 65, chap. 149).</p> <p>By the maritine law a seaman injured in the service of a ship, whether by the fault of the master or a fellow-servant or his own fault, has always been entitled to maintenance and cure but not to compensatory damages unless the injury was due to unseaworthiness or aggrevated by want of attention or medical treatment.</p> <p>Plaintiff while engaged in painting the outside of a steamer at Cristobal, Panama, was injured in reaching the deck from the ropes supporting a wooden stage upon which he had been painting, he having gone up the ropes hand over hand, the pulleys on the tackle supporting the stage haying jammed owipg to the list of the vessel. In an action brought by plaintiff for personal injuries due to the negligence of defendant in failing to furnish proper equipment, i. e., rope ladders, and for expenses of maintenance and cure plaintiff recovered a verdict. Defendant moves to set aside the verdict and to dismiss the complaint. Held, that defendant was liable both under the rules of the maritime law and under the acts of Congress for failure to supply an appliance required for the work upon which plaintiff was engaged; that plaintiff was not required to elect between a claim for indemnity and a claim for maintenance and cure but might demand both in one action, and the jury was warranted in its verdict.</p>

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

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

<p>Motion for .retaxation of costs under section 1536 of the Civil Practice Act.</p>

<p>Pleading — complaint — recital of evidence and allegations of conclusions based thereon — when denials in answer will not be stricken out.</p> <p>A plaintiff by pleading evidentiary facts based upon its own conclusions of testimony should not be allowed to compel the defendant to admit those facts as pleaded without qualification, but the defendant may deny those facts if such denial is made in good faith and based on its own conclusions from the same testimony and such conclusions are not palpably wrong.</p> <p>Under a warrant of attachment granted in an action commenced by one of the plaintiffs herein against a foreign corporation, the other plaintiff herein, as sheriff, attempted to levy upon property claimed to belong to the foreign corporation in the hands of the defendant herein. After defendant had made a return that it had no property of the said corporation in its hands the plaintiff in the attachment suit obtained an order for the examination of the present defendant and brought the present action upon a complaint alleging not merely the ultimate facts upon which liability on the part of the defendant might be based but also the evidence obtained on defendant’s examination through which plaintiff expected to establish the ultimate facts. Plaintiff upon a claim that the testimony given by the defendant upon its examination under said order established the falsity of the denials in its answer of some of the allegations of the complaint, made a motion to strike out such denials as sham and frivolous. Held, that as there was no denial contained in the answer of any allegation of the complaint where such allegation was not subject to explanation tending to limit the effect of the unqualified affirmative allegation of the complaint to a degree which makes at least arguable the propriety of the denial, plaintiff’s motion will be denied.</p>

<p>Certiorari — Education Law — taxation — jurisdiction of the Supreme Court — action taken at meeting of union free school district declared void — statutes — order made that records of'meeting be certified to the court.</p> <p>A statutory requirement must be strictly followed if acts done pursuant to its authority are to be sustained.</p> <p>At an annual meeting of the Seneca Falls union free school district the several items of the budget, amounting to upwards of $80,000, with the authorization of a tax levy therefor, were voted upon separately by a viva voce vote and were declared by the chairman to have been adopted. Held, that the vote not having been taken “ by ballot, or ascertained by taking and recording the ayes and noes of such qualified voters attending and voting at such district meeting,” as required by section 207 of the Education Law, the attempted action of the school meeting in the premises was wholly void and ineffective.</p> <p>Although a decision of the commissioner of education is not subject to judicial review so far as it pertains to the administration of the educational system, and but incidentally, if at all, affects property rights, yet the courts in the absence of express statute still retain and will exercise full jurisdiction in all matters outside the general policy, administration and control of the educational system where it conflicts or interferes with the rights and interests of the people.</p> <p>As the question here relates entirely to taxes and taxation and affects all the property owners, whether present at the meeting or not, they were entitled to have their rights in the matter determined by the courts instead of by the commissioner of education, whose judicial functions "are only quasi.</p> <p>Application for an order of certiorari that the commissioners of education of the said school district certify to the court the record of the said meeting granted upon the proceedings being amended as petitioners may be advised.</p>

Motion by defendant under rule 106 of the Rules of Civil Practice to dismiss the complaint upon the ground that it appears on the face thereof that said complaint does not state facts sufficient to constitute a cause of action.

<p>Action upon a promissory note.</p>

<p>Wills — construction — words “or their heirs” construed as words of substitution and not of limitation — when remainders do not vest.</p> <p>The will of testator, containing no power of sale, after an absolute bequest to his wife of all his household goods and furniture, contained a clause by which she was given the use and income of the entire estate during her lifetime, with direction that at her death the estate be equally divided between the two daughters of the testator or their heirs, share and share alike. The widow and both daughters are still living. Held, that as no contrary intention could be gathered from the- rest of the will, the words “ or their heirs ” were to be construed as words of substitution and not of limitation, and that the remainders have not vested.</p>

<p>Application to remove respondent from real estate and to make him account.</p>

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

<p>Executors and administrators —■ discovery proceeding — surrogate has jurisdiction only as to personal property — evidence showing conversion of securities by respondent — order directing restitution.</p> <p>The jurisdiction of the surrogate in discovery proceedings is limited to “ money or other personal property.” ,</p> <p>Where, therefore, property sought to be discovered included real estate conveyed to the respondent by the decedent a few months prior to his death and also moneys diverted by respondent in cash and in bank or the proceeds of the sale of securities belonging to the decedent and converted by the respondent, the surrogate is without jurisdiction to make a decree affecting such property.</p> <p>In such case the representative of the estate must proceed in equity to follow the trust fund or to set aside the conveyances of the real estate or bring an action at law for conversion.</p> <p>From the appearances of witnesses upon the stand, their irreconcilable stories, their false statements upon material points and the contradictory and untruthful testimony given by the respondent, the court was convinced that certain certificates of stock of various Standard Oil companies having been indorsed in blank by decedent, were subsequently altered without his knowledge by the insertion of the name of the respondent as transferee and that there was no gift or transfer of said certificates from him to her. It further appeared that though two of said certificates were bought for the account of decedent with his money and delivered to him less than a month before he died, when he could not write, said securities were neither offered in evidence nor was proof made of a gift of the same to respondent, but after the death of decedent said securities appeared in the personal account of the respondent on her broker’s books. Held, that said certificates of stock were the property of the estate of decedent and the delivery of the certificates to the administratrix is directed.</p> <p>New certificates for the other shares alleged to have been assigned by decedent to respondent upon the surrender of the old certificates were pledged by her for a loan and thereafter she continued to receive the dividends and the certificates were not indorsed to the pledgee. Held, that in view of the prosperous financial condition of the respondent at the time of the alleged loan the circumstances thereof were at least suspicious, and under section 205 of the Surrogate’s Court Act, the property being under her control, a decree will be granted directing the delivery thereof, subject to any equities or legal rights of the pledgee.</p> <p>Decree with directions as indicated in the opinion of the court granted, "with costs to the petitioner.</p>

<p>Trusts — infants — accumulation of income during minority — implied direction for accumulation for educational purposes — when general guardian not entitled to receive same.</p> <p>Testatrix devised and bequeathed the remainder of her estate in trust for the benefit of three grandnephews, directing her trustee to apply and pay the income from the trust property for their education, and upon each of the grandnephews arriving at the age of twenty-three years to turn over to each of them absolutely one-third of the principal with the remainder over to the survivors in case of the death of any of them before reaching the age of twenty-three years. The general guardian of the infants contends that if the will directs the expenditure out of the income of moneys sufficient for the education only of the infants, the surplus income is payable to him in behalf of the infant as the owner of the next eventual estate or in the alternative that the entire income should be paid over to him as such guardian. Held, that the will creates separate divisible trusts for the benefit of each of the infants with remainder over, in case of the death of any of them before reaching twenty-three years of age, to the survivors; that while there is no express direction to accumulate, there is. however, an implication that the trustee reserve such accumulations over and above the moneys to be expended by him for the limited purpose fixed by the testatrix; that the implied direction to accumulate income during the minority of each infant is valid under section 61 of the Real Property Law; that section 63 of the Real Property Law has no application to the will as it only applies where there is no valid direction for an accumulation express or implied; that the contentions of the general guardian cannot be sustained. .</p> <p>Should the infants become destitute or if their parents, with whom they reside, are unable to provide for their maintenance and support, an application for an annual allowance for that object may be made under section 17 of the Personal Property Law. _</p>

<p>Contracts — Statute of Frauds — oral contract of sale made over the telephone — subsequent payment and acceptance of part of purchase price takes transaction out of the Statute of Frauds — pleading — Civ. Prac. Act, § 242.</p> <p>The Statute of Frauds to be available as a defense must be pleaded and a failure to do so waives its requirements.</p> <p>A complaint alleged that a contract for the purchase by plaintiff of certain corporate stock from defendant at a specified price per share was induced by false and fraudulent representations on the part of the defendant and judgment was asked for a rescission of the sale and for the sum of fifty dollars paid by plaintiff on account of the purchase price. The answer, admitting the moVing of the agreement and said payment, denied the other allegations of the complaint and set up a counterclaim for tbe unpaid balance of the purchase price of the stock which was never delivered or accepted and asked for an affirmative judgment thereon. A reply denying the allegations of the counterclaim was served. The trial judge found as a fact that the''contract was made over the telephone several days prior to the payment of the fifty dollars, but there was no evidence to warrant a finding that there was any fraudulent representation made by defendant either when the contract was actually made or at the time of the alleged payment. Held, that plaintiff’s right to recover depended upon whether the contract was enforcible.</p> <p>Under section 242 of the Civil Practice Act a party by his pleadings must raise all matters which show that the transaction in suit is either void or voidable in point of law, and all grounds which if not raised would be likely to take the ^opposite party by surprise, including facts showing illegality on account of the Statute of Frauds, must be pleaded before the plaintiff can take advantage - of the statutes in order to avoid his contract.</p> <p>Had the Statute of Frauds been pleaded it would not have availed the plaintiff because unless the payment of the fifty dollars, conceded by plaintiff to have been made upon the purchase price, was induced by fraud, of which there was no proof,- the contract was enforcible, for under section 85 of the Personal Property Law such payment, whether made before or after the contract .was consummated, took it out of the Statute of Frauds, and the complaint will be ' dismissed and defendant awarded judgment on its counterclaim, with costs.</p>

<p>Mandamus — board of supervisors — land taken by county for highway purposes — when options merge into contracts which cannot be rescinded by supervisors •— equity — vendor and purchaser.</p> <p>A vendee cannot rescind a contract for the purchase of real estate and still continue in possession.</p> <p>A committee of the board of supervisors of the county of Oneida, in order to acquire certain land which was necessary to perfect a new highway in the course of construction by the state, under section 148 of the Highway Law obtained from the owner of both parcels two instruments in writing giving the committee an option upon the property for the sum of $918 for each parcel. The committee reported the options and the action of the county in taking immediate possession of the land to the state highway commission and it, together with the county judge and the county treasurer, approved such action and the highway was completed by the state. About ten days after the board of supervisors had ratified the proceeding and directed its clerk and chairman to draw warrants in payment of the agreed price of the land, abstracts of title • were presented to the attorney of the board of supervisors, with duly executed deeds of conveyance, to which no objection was or has been made. The owners of the property have fully complied with all the terms and the conditions of said options as ratified and confirmed.</p> <p>After the completion of the work the board of supervisors rescinded its action in the matter upon the ground that the price agreed upon was entirely out of proportion to the value of the property and offered $300 for both parcels, which was refused. Held, that the county by taking possession of the land ratified the options and mutual and binding agreements were created which the board of supervisors were without power to rescind; that the purchase price became due to the owners at the time their deeds were presented; that the options having merged into mutual contracts enforcible in equity and a ministerial act alone being necessary for a complete performance of the contracts on the part of the purchaser, an order of mandamus will be issued directing the proper county officials to execute and issue the warrants for the amounts agreed upon for the land.</p>

<p>Insurance — life — husband and wife — when wife has vested interest in policy on husband’s life — incompetency of husband — committee cannot compel wife to surrender policy.</p> <p>A policy of insurance upon the life of a husband reserving to him the right to change the name of the beneficiary, was made payable to his wife upon her agreement to pay the premiums out of the money he allowed her for the management of the house and her private funds. At the time the husband was adjudged an incompetent person the name of the beneficiary had not been changed and the premiums had been paid by the wife as agreed, except during the year that she acted as his committee when the premium was paid from the receipts of the business she was conducting for him. Held, that by contract and by operation of law the wife had a vested interest in and to the policy of which she could not be deprived without her consent.</p> <p>The committee of the person and estate of the husband was and is without power, either by overt act or otherwise, to change the name of the beneficiary of the policy, and a motion to compel the wife to surrender to said committee the policy or its cash surrender value on the ground that the committee was entitled thereto as part of the incompetent’s estate and had the right to use the same for the payment of his debts and for his care and support, will be denied.</p>

<p>Motion by respective parties for direction of verdict and to set aside special verdict of the jury.</p>

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

<p>Injunctions — steamboat dock belonging to city under lease to navigation company — right of receiver of navigation company to contract for transportation of passengers by vehicles — what is not a private hack-stand on public property.</p> <p>Where the receiver of a navigation company has full control of leased property all persons who without his permission enter upon the premises with taxicabs or other vehicles to solicit trade are intruders and trespassers.</p> <p>A contract between such a receiver and a particular person for the conveyance of passengers arriving on the steamboats of the navigation company to such places as they might desire to go did not authorize said person to station his taxicabs on the steamboat premises beyond the hour of nine-thirty a. m. , and while the contract did not in express terms forbid him to solicit custom from the public generally, it did not authorize him to do so and did not contemplate that he should. Held, that the receiver was within his rights in making the contract which could not be interpreted as a violation of section 444 of the Penal Law which in effect makes it a crime to maintain a private hack-stand on public property.</p>

<p>Motions for temporary injunctions.</p>

<p>Practice — consolidation of actions — unnecessary that parties defendant be the same.</p> <p>It is no longer the rule that two actions to be consolidated should be against the same defendant and where separate actions are brought to recover damages i alleged to have been caused by the failure of the respective defendants to properly shore up and protect the real property of plaintiff during the construction of buildings on both sides thereof, commenced at different times, plaintiff’s motion for the consolidation of the actions will be granted.</p>

<p>Taxes — certiorari — assessment of building in the city of New York — when building divided into suites of rooms not an “hotel” — when entitled to benefit of exemption from taxation granted new buildings by Laws of 1922, chap. 281.</p> <p>On the ground floor of a fifteen-story building in the city of New York, owned by relator, there are stores and a restaurant not conducted by relator but in part controlled by it through an elaborate contract of lease. There are one hundred and forty-one rooms in the building so arranged that they may bo grouped in suites of one and two rooms with bath, three and four rooms with two baths and five rooms with three baths, b.ut no suites of more than five rooms have ever been occupied as such. One hundred and thirteen rooms are leased to permanent tenants and about twenty per cent of the total number of rooms are being used temporarily by transients in order to derive an income therefrom pending attempts to lease them for long terms like the rest of the rooms. There are no public rooms or public accommodations usually associated with the idea of an hotel except a small reception room. ■ The commissioners of taxes and assessments taxed the building for the year 1922 as an hotel. Held, that a motion for a writ of certiorari to correct said assessment for the purpose of obtaining the benefit of the exemption granted by a city ordinance passed by virtue of the authority of section 4,-b of chapter 281 of the Laws of 1922, which exemption applies to “ new buildings therein planned for dwelling purposes exclusively, except hotels,” will be granted.</p> <p>Application for certiorari.</p>

<p>Injunction — restraining interference of commissioner of public welfare with church bazaar — gambling device — duty of police — modification of injunction.</p> <p>Section 196 of the Code of Ordinances of the city of New York does not authorize the commissioner of public welfare to assume jurisdiction and supervise any activity other than one for the soliciting of money, donations or financial assistance upon the public streets or in public places.</p> <p>Where, upon a motion by said commissioner to vacate as to him an ex parte stay granted by an injunction order restraining interference with the conduct of a bazaar being held on behalf of plaintiff, a religious corporation, on its own premises, which is surrounded by a very high inclosing structure excluding the interior from public view, nothing appears in the moving papers to indicate that any solicitation within the meaning of section 196 of said Code of Ordinances is taking place upon the private premises of the plaintiff or even upon streets or in public places, the injunction will be sustained.</p> <p>It was object^! that the injunction was too broad in that it permitted to be operated a gambling apparatus described as one where persons pay ten cents for a chance to receive any one of a set of articles of differing values, which have affixed to them given numbers. The determination as te which article a person is to get for ten cents is decided by the turn of a wheel and the chance stopping of it at a point on a surface marked with a set of corresponding numbers. Held, that the operating of said apparatus was a violation of section 971 of the Penal Law and while the commissioner of public welfare had no jurisdiction in the matter the peace officers of the community had, and as to them and their superior executive officers the injunction will be modified by striking out such provisions as restrain them from performing their duty with respect to violations of law in the particular instance.</p> <p>The police have a right to assume that a religious or charitable corporation in conducting an affair on its own private grounds is not doing anything criminal and should not interfere with the activity unless and until facts are brought to their attention which overthrow the presumption of the innocent and lawful nature of the activity conducted in behalf of such an institution.</p> <p>The use of a wheel to distribute property by chance where all persons engaging in the venture get something but of different value is in violation of the criminal law even though there are no losers.</p>

<p>Practice — complaint setting forth several causes of action not separately stated — motion for judgment on pleadings — court will not separate causes on its own motion so as to give judgment for defendant as to some — when judgment in prior action not a bar — when declaration in judgment that it was “ on the merits ” is of no force.</p> <p>While a complaint alleged facts sufficient to constitute several causes of action to recover rent of premises alleged to have been sublet by plaintiff to defendants; a certain sum for work alleged to have been performed by plaintiff for which the defendants promised and agreed to pay; a further sum for the use of the room and a further sum for the conversion of an ornament in said premises, the causes of action were not separately stated and numbered. Upon a motion by defendants for judgment upon the pleadings on the grounds that the claims or demands set forth in the complaint have been released; that it appears from the records of the court that the claims or demands set forth in the complaint have been paid; that there is an existing judgment or decree of a court of competent jurisdiction rendered on the merits determining the same cause of action between the parties and that the complaint did not state facts sufficient to constitute a cause of action, it appeared that plaintiff and one S. were partners in the management of certain premises leased by the owners to S. acting either as a representative of the partnership or as agent of the plaintiff, which premises were sublet to the defendants herein. Disputes having arisen between plaintiff and S. and between plaintiff and said defendants the latter paid the rent to S., from whom they obtained a release of all claims which she or the partnership might have against defendants. In an action brought by plaintiff for an accounting she procured a judgment for her share of the moneys paid to S. by the defendants. The plaintiff also brought other actions against various of the defendants herein, in one of which the defendants who were served interposed a demurrer on the ground that it appeared upon the face of the complaint that causes of action had been improperly -united. The demurrer was sustained with leave to serve an amended complaint, upon certain conditions, but no such complaint was served. Held, that the insertion of the words “ on the merits ” in the order for judgment dismissing the complaint was by inadvertence and said judgment was not a bar to the present action.</p> <p>The complaint herein including as it does a number of items which were not covered by the original action, at least as to these items no judgment could be given under rule 107(5) of the Rules of Civil Practice.</p> <p>While undoubtedly the subject-matter of the earlier action, which was for moneys which plaintiff claimed were wrongfully paid to S. instead of to herself, covered part of plaintiff’s present claim for rent, it did not appear that it covered any other part of plaintiff’s claims.</p> <p>When causes of action set forth in a single complaint are not separately stated and numbered the court should not of its own motion separate and give judgment upon one, denying it as to the others, especially against defendants’ contention that only one cause of action is stated.</p> <p>While the recovery of judgment by plaintiff against her partner for a share of the moneys due for rent was a ratification of the act of said partner in receiving payments even if she had not under the partnership arrangement been authorized to do so, the release of obligations due to the firm could not affect plaintiff's right to recover for services and for use of the room, no liability for which arises under the lease.</p> <p>Defendants’ motion for judgment on the pleadings denied, but without prejudice to a renewal if an amended complaint be served separately stating and numbering the causes of action.</p>

<p>Process — foreign corporation — when service of summons on managing agent good.</p> <p>Where the activities of a foreign corporation within this state are systematic and regular it will be held to be doing business therein.</p> <p>The defendant, a Massachusetts corporation, maintains a general stock of its goods in the premises of and in the charge of a domestic corporation upon whom from time to time various New York customers of the defendant call and procure upon their written orders various lots of goods sold by defendant. Held, that proof that defendant’s goods are not withdrawn except upon orders of third parties; that whether such orders shall be honored is determined by the domestic corporation from the credit list furnished to it by defendant; that the nature and extent of the withdrawals are unknown to defendant until report thereof is made to it by the domestic corporation, established that the domestic corporation was not acting merely as a warehouseman.</p> <p>The activities of the defendant are such as to require it to be held to be doing business within this state and the service of a summons upon an officer of the domestic corporation, as managing agent of the defendant, is good, and a motion to set aside such service will be denied.</p>

<p>Accounting .proceeding. ■</p>

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

<p>Moton to vacate service of summons.</p>

<p>Action on indemnity agreement.</p>

<p>Motion to punish defendants for contempt of court.</p>

<p>Motion for a new trial.</p>

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

<p>Petition for mandamus.</p>

<p>Motion to set aside order fixing boundaries of school districts.</p>

<p>Motion to punish third party for contempt.</p>

<p>Practice — when new party to action may be brought in — action for commissions on sale of real estate — purchaser will not be made party because she is alleged to have told seller there was no broker in the transaction — Civil Practice Act, § 193.</p> <p>A motion under section 193 of the Civil Practice Act to bring in as a party defendant a third person against whom the moving party has a claim should be granted, (1) where the third person is liable to the plaintiff jointly or severally with the defendant, or when e ther he or the defendant, but not both, is so liable upon the claim in suit, or (2) where irrespective of the third person’s liability to plaintiff for the claim sued on he is liable to indemnify the defendant thereon.</p> <p>Where a real estate broker sues to recover commissions upon an allegation that he procured one R. as the purchaser of property owned by defendant, a motion under section 193 of the Civil Practice Act, as amended in 1922, to bring in R. as a party defendant upon defendant’s claim that if it is held liable to the plaintiff R. is liable to defendant because in the contract of sale R. represented that there was no broker in the transaction, will be denied.</p>

<p>Practice — reference t<r hear and determine — no question affecting merits is reviewable after entry of judgment on report.</p> <p>Where judgment has been entered upon the report of a referee to hear and determine the issues no question affecting the merits is reviewable upon a motion to set aside the report and such a motion must be denied for want of power.</p>

Action to recover an interest in real estate and the possession of a player piano on the ground that the same were disposed of with intent to hinder, delay and defraud creditors.

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

<p>Motion to vacate attachment.</p>

<p>Corporations — limited powers of public service commission — light and power corporation may issue stock of no par value in exchange for all outstanding stock of par value without authority from the public service commission — Public Service Commission Law, §. 69.</p> <p>Under section 24 of the Stock Corporation Law, as amended, any stock corporation other than a moneyed one may, by filing pursuant to section 5 of the General Corporation Law an amendment to its certificate of incorporation as specified in said section 24, change its shares of stock of nominal or par value into shares with no nominal or par value.</p> <p>The public service commission possesses only such powers as are expressly conferred upon it by statute.</p> <p>The evils which prompted the enactment of section 69 of the Public Service Commission Law and which were sought to be eliminated by its application under regulatory powers of the public service commission, related to changes in obligations which affected the integrity of a gas or electrical corporation, but no such evil is involved in the mere change in the character of its stock when the actual existing capital is unaffected nor does an exchange of stock in such circumstances come within any of the purposes set forth in said section 69, which require the approval by order of the public service commission.</p> <p>In an action to recover a penalty imposed by section 73 of the Public Service Commission Law for the failure or neglect of the defendant, a domestic light and power company, to comply with the provisions of section 69 of said statute in relation to the issuing of stock, the complaint alleged that the violation of the statute consisted in the issuance by defendant, under an amended certificate of incorporation, of 1,000 shares of stock of no nominal or par value in exchange for all of the outstanding stock of par value without applying for and securing authority from the public service commission for such issuance and exchange. Held, that had the legislature intended that the public service commission should exercise supervision over all stock issues it would have used language appropriate to express such intent and not have specified with particularity the matters over which the control of the public service commission was deemed necessary, and which does not include the right to exchange one quantity of stock for another without increase of capitalization. The defendant, therefore, is entitled to judgment dismissing the complaint, with costs.</p>

<p>Mandamus — removal of police officer — return of commissioner to an appeal from order denying motion to reopen case will be ordered.</p> <p>Where on appeal from an order of removal after a trial upon charges preferred against a police officer the police commissioner files a return of the proceedings had and taken upon the trial, an order of mandamus may be granted to compel a return by him to a further appeal from an order denying relator’s application to reopen the case on the ground of newly-discovered evidence.</p>

<p>Practice — service of summons on foreign corporation — failure to show effort to effect service on officers — service on domestic corporation — when local agent of insurance company not “ managing agent.”</p> <p>Where, upon a motion to set aside the service of the summons which was made upon the defendants, who are foreign corporations, under subdivision 3 of section 229 of the Civil Practice Act, the answering affidavits or the affidavits of service fail to show any act or effort on the part of the plaintiff to effect service under subdivisions 1 and 2 of said section, the service as made is void.</p> <p>A local fire insurance agent of a domestic corporation is not a “ managing agent ” within the meaning of section 228 of the Civil Practice Act, and service upon him of the summons in an action against the corporation is not good, and the fact that it received from said agent information as to such service is immaterial.</p>

<p>Motion to dissolve temporary injunction.</p>

<p>Action on policy of life insurance.</p>

<p>Wills — construction — when “death” means death before testator — when devisees take as tenants in common and not as joint tenants — partition — accounting — Decedent Estate Law, § 80.</p> <p>A testator devised and bequeathed his homestead and all furniture therein contained to his two unmarried daughters in fee simple subject to the payment by them from their own personal money and estate of the amount of any mortgage debt upon the real property due at the time of his death. A codicil to the will declared that in case of the death of either of said daughters the survivor of them should take, have, possess and enjoy, solely and absolutely, all the real and personal property in fee simple and otherwise and in ease both of them died before the testator the real and personal property should revert and fall into the general fund of his estate for distribution in accordance with the terms of . his will. A devise by one of said daughters to the other, of her undivided one-half interest in said property, was by a codicil to her will changed to a life interest with remainder over to a niece and two nephews. Said niece died intestate leaving her surviving no children but a husband, a brother, her father and her mother. In an action for partition and for an accounting by one of the defendants for rents collected by him since the date of the death of the survivor of said two daughters of the testator, said defendant, in support of his claim to be the sole owner in fee of the premises since the death of said surviving daughter, to the exclusion of every other party to the action, relied upon a devise to him of the premises in question under the duly probated will of the survivor of testator’s said two daughters. Held, that the language of the will and codicil, interpreted under well-established rules, referred to a death of either daughter before the demise of the testator, and as both daughters survived him they held the estate as tenants in common, and nothing in the codicil furnished a sound basis for a claim of joint tenancy with survivorship after the death of testator.</p> <p>The words," any relative of the blood of such parent,” in former section 280 of the Real Property Law, now section 80, Decedent Estate Law, mean exclusively of such blood, and if the ancestor from whom an intestate inherits is of the common blood of both the father and the mother, the intestate does not inherit from a relative of the blood of the mother in the sense intended by the statute.</p> <p>It appearing upon an issue raised as to the descent of the one-sixth interest which the niece inherited from her maternal aunt, her mother’s sister, that the father of said niece was a third or fourth cousin of her said maternal aunt, as well as his wife, the share of said niece descended to her father and not to her mother.</p> <p>A final judgment granted in favor of plaintiff and for an accounting of the rents collected since the death of the survivor of said two daughters of the testator.</p> <p>The question of contribution on account of an alleged payment by the survivor of said daughters of the mortgage on the property in question was not properly before the court, but even so no contribution could be enforced on the facts proved.</p>

<p>Application for order in supplementary proceedings.</p>

<p>Certiorari to review action of board of appeals.</p>

<p>Landlord and tenant — lease by one who has only life estate in property — death of lessor — ouster of tenant — right to compensatory damages — breach of covenant of quiet enj oyment — practice — compulsory accounting — right of creditor of estate to show facts necessitating sale of real éstate.</p> <p>The failure of a lessor to disclose to his lessee that he was only the life tenant of the leased property entitles the lessee, who was compelled to vacate the premises before the expiration of his term, to compensatory damages for breach of the covenant of quiet enjoyment contained in the lease.</p> <p>Decedent entered into a lease for a term of years without disclosing to his lessee that he was only the tenant for life of the property. Upon the death of the lessor the remainderman refused to recognize the lease, raised the rent and then sold the property. Held, that the lessee’s claim for damages in the amount stipulated will be allowed against the estate of the life tenant.</p> <p>The consolidation of an involuntary accounting proceeding commenced within eighteen months from the date of letters testamentary with a voluntary accounting proceeding is in effect a continuation of the compulsory proceeding, and as in such a ease, under section 236 of the Surrogate’s Court Act any party to the proceeding may allege and prove such facts and circumstances as are required to order the sale of the real property left by the decedent for the payment of debts, the surrogate under section 65 of said statute may make such an order in the proceeding for the settlement of the accounts of the executor.</p>

<p>Practice —• probate of will — contest — disqualification of surrogate — power of Supreme Court to take jurisdiction and determine the issues.</p> <p>Where the surrogate of Kings county files a certificate of disqualification and the county judge as acting surrogate, pursuant to section 8 of the Surrogate’s Court Act, transfers the case to the Supreme Court, sitting at Special Term, for hearing and determination, the Surrogate’s Court becomes functus officio and the Supreme Court from that point on acquires full jurisdiction of the proceeding by force of the statute.</p> <p>All parties having appeared at the Special Term upon a motion which sought among other things a jury trial which the court was authorized to grant under section 429 of the Civil Practice Act, the court directed a trial of the controverted questions of fact involved at a Trial Term. Held, that in so doing practical effect was given to both section 8 and section 68 of the Surrogate’s Court Act.</p> <p>The Supreme Court in the exercise of general jurisdiction might have directed that the Trial Term certify the result back to the Surrogate’s Court or have the Trial Term report back to the Special Term and have the Special Term control the proceedings from that point on under section 8 of the Surrogate’s Court Act and certify back to the Surrogate’s Court; there was, therefore, no irregularity in practice in following the latter procedure.</p> <p>While the Supreme Court acts at a Trial Term pursuant to a direction of the Supreme Court sitting at Special Term, it is acting on behalf of said Special Term and complying with the terms of section 8 of the Surrogate’s Court Act which provides for the transfer of a ease to the Special Term for hearing -and determination.</p> <p>Section 68 of the Surrogate’s Court Act, which provides that the surrogate may in his discretion direct a trial of controverted questions of fact at a Trial Term of the Supreme Court, presents no complication in connection with section 8 of said statute and is concerned solely with what the surrogate may do in connection with a trial by jury, and neither the surrogate nor acting surrogate has power to do anything with respect to a trial by jury in the present case.</p>

<p>Action to foreclose a mechanic’s hen.</p>

<p>Banking — when maker of check cannot be charged with responsibility for knowledge of payee’s signature — motion for summary judgment granted in action to recover amount of three checks where payee’s name has been forged.</p> <p>Ordinarily the maker of a check cannot be charged with any responsibility for knowledge of the signature of the payee.</p> <p>Upon plaintiff’s motion for summary judgment in an action to recover the amount of three checks drawn by plaintiff upon the defendant bank, in which it was a depositor, payable to the attorneys of the landlord of plaintiff for rent, it was made to appear that the indorsement of the payee’s name on the check had been forged by plaintiff’s vice-president, who deposited the same to his personal account in another bank which in turn charged the same to plaintiff. The main defense relied on was the alleged negligence of plaintiff in not discovering the forgeries earlier than it did and in not notifying defendant thereof with the implied possibility of defendant thereby recouping a part of the loss. Held, that the motion will be granted.</p> <p>A further defense to the effect that the guilty vice-president paid part of the amount of one of the checks to the attorneys of plaintiff’s landlord was clearly insufficient.</p>

<p>Mortgages — power of attorney to convey — when language of power of attorney will be construed against grantor —• purchase-money mortgage.</p> <p>The language of a power of attorney is not to be enlarged by construction to cover powers not naturally within its scope, neither is it to be unduly restricted.</p> <p>Where the rights of third parties have intervened the language of a power of attorney, if of doubtful import, will be construed against the grantor and read in the light of the surrounding circumstances in order to give effect to the evident intention of the principal at the time the power is exercised.</p> <p>Defendant, a woman of mature years, of limited education and no business experience, being the owner of certain land, gave to her cousin, a substantial business man and one of the officers of a trust company, a power of attorney which authorized him for a period of three years to lease the land for not less than $100 a year or to sell it for not less than $10,000, “ and to do every other •thing necessary or proper for carrying into effect the execution of any agreement of sale made by him,” and defendant undertook at all times to ratify whatsoever the attorney should lawfully do or cause to be done in or concerning the premises. Plaintiff entered into possession of the premises under a lease which gave it an option to purchase the premises for $12,000 at any time during the life of the lease. Before the expiration of the term plaintiff entered into a contract with the attorney in fact to purchase the property at $12,000, made a down payment of $3,000 and agreed to pay the balance on or before the date when the power of attorney should expire. The day before the power of attorney expired $2,000 additional was paid, the deed made to one of plaintiff’s directors, who, after giving back his bond and mortgage for $7,000 payable in one year, immediately conveyed the premises to plaintiff, which also gave its note to defendant for the balance due. Defendant upon the sole ground that the attorney in fact had no authority to sell the premises and that he had sold them for an inadequate price, refused to accept payment of said mortgage at maturity and also refused to accept a legal tender of the balance due upon the purchase price, thereafter made. Held, that the taking of said mortgage was within the powers intended to be conferred by the power of attorney.</p> <p>In an action brought to have the said mortgage discharged of record, evidence considered and plaintiff granted judgment for the relief asked for by the complaint.</p> <p>It seems not to be unwarrantable for the court to take judicial notice of the fact that there is a well-known custom in this state to take mortgages for a substantial part of the purchase price of real property, when that is desired by the purchaser.</p>

Motion on behalf of the defendants and the University of Rochester, an intervening party, to vacate the certiorari order granted herein, and to dismiss the proceeding.

<p>Husband and wife — when motion to confirm report of referee recommending annulment of marriage will be denied as matter of discretion — Domestic Relations Law, § 7(1), applied.</p> <p>Where the report of the referee recommends the annulment of a marriage on the ground that at the time it was contracted the plaintiff was under eighteen years of age, that the parties had not cohabited since plaintiff arrived at that age, but the record discloses no facts that would lead to the conclusion that the parties could not live as husband and wife if each would recognize their parental duty to properly care for and maintain their child, who is less than a year old, a motion to confirm the report of the referee will be denied as matter of discretion under section 7(1) of the Domestic Relations Law, as amended in 1922.</p>

<p>Evidence — action in equity to compel payments of money — when plaintiff not an incompetent witness under Civil Practice Act, section 347 — findings of jury not against weight of evidence.</p> <p>In an action in equity to compel the father of plaintiff to make certain payments of money, the jury upon the submission of framed issues found that the father, in consideration of the promise of plaintiff to transfer his share in his mother’s estate to his brother, agreed upon notification of the amount of such share to pay a like amount to plaintiff’s said brother and to his sister. Upon the trial the plaintiff was permitted to testify to the conversation with his father, who died after the commencement of the action, in which the agreement sought to be enforced was claimed to have been made. On motion to set aside a verdict in plaintiff’s favor the administrator of defendant challenged the correctness of the ruling under which plaintiff was allowed to testify, upon the ground that he was an incompetent witness under section 347 of the Civil Practice Act. Held, that plaintiff had no interest in the event of the cause nor in the record for the purpose of evidence and that the ruling complained of was correct, the finding of the jury was not against the weight of evidence and the motion to set aside the verdict will be denied.</p> <p>The right asserted for the brother and the sister of plaintiff was to enforce directly against the estate of their father an obligation assumed by him directly for their benefit, and the mere fact that the plaintiff furnished the consideration did not make him the source from which his brother and sister derived any title oi interest.</p>

<p>Motion by petitioner for an order permitting him to examine voting machines.</p>

<p>Súrrogate’s Court — contested probate — attorneys for unsuccessful proponents not entitled to allowances — Surrogate’s Court Act, sections 278, 231-a — practice.</p> <p>A decision of a surrogate denying probate to a paper propounded as a last will was affirmed by the Court of Appeals but no allowance was made in the final decree ■ 'denying probate to any one except the next of Mn who were the successful parties. Held, that the attorneys for the unsuccessful proponent were not within the class of persons enumerated in section 278 of the Surrogate’s Court Act to whom an allowance for counsel fees may be made in a contested probate proceeding nor was such an allowance justified under section 231-a of the Surrogate’s Court . Act, in effect September 1, 1923, and a motion to fix the compensation of said attorneys will be denied.</p> <p>The proper practice upon such an application is by citation or an order to shew cause to the parties interested, particularly to those whose funds bear the burden of the charge, and not by a notice of motion.</p>

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

<p>Bills and notes — action on promissory note — answer — right of defendant to waive tort and counterclaim on contract — breach of contract —• partnership.</p> <p>.Upon the trial of an action on a promissory note it was clearly established that a certain sum of money for which defendant interposed a counterclaim was forwarded by him to plaintiff for the specific purpose of redeeming certain bonds and that plaintiff did not apply the money for that purpose. Held, that to plaintiff’s contention that the counterclaim should be dismissed as one not permitted by section 266 of the Civil Practice Act, in that the cause of action set forth therein was one in conversion, it was an answer that the counterclaim was for breach of contract; defendant had a right to waive the tort and counterclaim on contract.</p> <p>Prior to the receipt of the money by cable, defendant’s resident partner in New York city had raised sufficient money and therewith had taken up the bonds. Plaintiff without consulting defendant asked permission of defendant’s resident partner to apply the money received by cable to the payment of an indebtedness existing between plaintiff and the defendant’s copartnership. The evidence showed that the money forwarded was exclusively that of the defendant and not of the partnership. Held, that defendant was entitled to judgment on the counterclaim, with interest.</p>

<p>Banks and banking — foreign banking corporation has capacity to sue as executor under Decedent Estate Law, section 160 — pleadings — Banking Law, section 223, not applicable.</p> <p>Under section 160 of the Decedent Estate Law an action may be brought in this state by a foreign banking corporation as executor, and a motion to strike out a separate defense, alleging that plaintiff has no capacity to sue, will be granted. Section 223 of the Banking Law, which refers merely to the right of the plaintiff to be appointed an executor in this state, cannot avail defendant in any way.</p>

<p>Wills — construction — trusts — when an ulterior, unlawful limitation will not invalidate the legal dispositions of a will — when a trust will not be declared void in anticipation of an event which may never happen.</p> <p>The will of testatrix directed the equal division of certain shares of corporate stock or the proceeds thereof, if sold, into two trusts. The income of the first trust was made payable to her son for his life, with direction that at his death the principal be paid to his eMldren and if none survived Mm the income was to be paid to the son’s wife until her remarriage or death. In the event of the son’s leaving no eMldren Mm surviving, there was a gift over of the remainder to another son of the testatrix, or to his issue. Certain other contingencies were provided for and in default of all other named remaindermen the remainder vested in a mece of the testatrix, or her heirs. The income of the second trust was directed to be paid to the remaining son of testatrix, with provisions similar to those of the first trust, for the benefit of his issue and Ms wife with the same scheme for the disposition of the remainder. By a codicil the provisions of the first trust were changed in the one particular that the wife of the life beneficiary was excluded from any participation and the benefits originally given to her were directed to inure to the benefit of any subsequent wife of said son. Though said son now has no issue there is in being an infant cMld of the life beneficiary under the second trust who has a remainder interest in both trusts. Held, that the first trust may not be set aside because of the remote possibility that the life beneficiary will marry a person not in being at the death of the testatrix, as the law will not permit an ulterior, unlawful limitation to invalidate the legal dispositions of the will, nor will the trust be presently declared invalid in anticipation of the actual happemng of the event, especially as the alleged invalid contingency may never happen.</p> <p>A contention that an ademption of the legacy resulted because the testatrix in her lifetime entered into an agreement for the sale of the stock bequeathed by her in trust, was without merit as a ground for breaking down the trusts.</p>

<p>Transfer tax proceeding.</p>

<p>Proceeding to settle intermediate account of executors.</p>

<p>Subscriptions — agreement signed only by subscribers binding upon acceptance — pleadings — parol evidence inadmissible to vary terms of written agreement.</p> <p>Where to an action upon a subscription agreement for benevolent purposes calling for payment by the defendants of a certain sum in installments, it was pleaded as a separate defense, in substance, that at a dinner at which the agreement was entered into and signed by defendants it was orally agreed between them and the representative of plaintiffs that the agreement should involve no obligation and that in any event it was conditioned upon the continued prosperity of defendants’ business, but it is evident that no such oral modification of the express terms of the written instrument could be established, an order denying plaintiffs’ motion to strike out said defense will be reversed, with costs, and the motion granted, with costs.</p> <p>A contention that, directly contrary to the import of the written instrument, there was no meeting of the minds of the parties, held untenable upon consideration of the allegations of the separate defense.</p> <p>Assuming that the signed paper did not become a contract until plaintiffs moved to perform their part of the obligation, namely, to procure further subscriptions, etc., defendants’ contention that their offer to pay was revoked before the work was done, was untenable as they neither revoked nor recalled their offer but had undertaken to amend or change it.</p> <p>The written agreement, though signed only by the defendants, became effective when accepted by plaintiffs and parol evidence of a condition imposed upon defendants’ offer to pay was inadmissible under the rule which forbids parol evidence to vary the terms of a written instrument.</p>

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

<p>Motion to set aside verdict.</p>

<p>Claims against state — damage to farm lands by leakage from Barge canal — state negligent in construction of canal — claimant entitled to recover — damages.</p>

<p>Proceedings upon petition of executor for construction of will.</p>