Volume 122 — New York Miscellaneous Reports

<p>Application for order of mandamus to compel audit of salary claim.</p>

<p>Deeds — restrictive covenants — action for permanent injunction against maintenance of garage attached to dwelling — restrictions against “ barn, shed, shop or outbuilding ” includes garage — equitable remedy denied plaintiffs where they violated restrictions.</p> <p>Under the rule that while a restrictive covenant should not be enlarged or extended by judicial construction it should be strictly construed against the grantors, a garage is a “ barn ” within a covenant that no “ barn, shed, shop or outbuilding ” should be erected on a lot conveyed.</p> <p>All of the lots into which a certain plot of land had been subdivided were conveyed subject to certain restrictions, one of which provided that no “ barn, shed, shop or outbuilding ” should be erected on corner lots and that as to other lots no structure should be erected within ninety feet of the building Une of the lot, and the deeds gave to the grantor, its legal representatives or assigns, or to the several persons thereafter owning any lot fronting upon the street on which the property was situate, a right of action against any person or persons violating or threatening to violate the restrictions. Defendants purchased a corner lot, in 1914 and the lot just northerly of theirs was purchased by plaintiffs in 1919. In an action for a permanent injunction against the maintenance of a garage attached to defendant’s dwelling, held, that although the garage was built in 1922 under a permit for the construction of a concrete storeroom it was a “ barn ” within the restriction affecting corner lots.</p> <p>The restrictive covenants ran with the land, and it appearing that plaintiffs, before taking title, had procured a search and prior to the commencement of the action had built and maintained a garage upon their premises in violation of the restrictions in their deed of conveyance the complaint will be dismissed.</p>

<p>Insurance (marine) — insurance certificates issued by defendant in lieu of policy to plaintiff's assignor covered loss by “ jettison and / or washing overboard ”— automobiles, included in shipment, covered by risk, lost at sea — when defendant’s contention that action was barred untenable — when plaintiff deemed holder of certificates in good faith and for value — when verdict will be directed for plaintiff.</p> <p>Certain insurance certificates issued by defendant to one B., with whom for some years it had had an open policy of marine insurance, to cover the shipment by him of a number of automobiles by steamship from New York to Gothenberg, Sweden, provided that the loss, if any, should be payable to the order of B. upon the surrender of the certificates, each of which represented and took the place of the policy, for the purpose of collecting any loss or claims and transferred all the rights of the original policyholder as fully as if the property were covered by a special policy direct to the holder of any particular certificate and free from any liability for unpaid premiums. The risk insured covered, among other things, “ jettison and / or washing overboard, irrespective of percentage.” The shipment included eight automobiles consigned to plaintiff at Stockholm, Sweden, against the loss of which, through the perils insured against, the defendant had issued to B. a certificate for each of said eight automobiles. After the shipment B. drew on plaintiff by sight drafts for the amount of the invoices and discounted the same at a bank in New York city, at the same time delivering to it along with said drafts the invoices, bills of lading and the insurance certificates which were indorsed by him in blank. Upon plaintiff’s acceptance of the drafts the foregoing documents came into its possession. On the voyage the steamship encountered heavy weather and a number of automobiles, including those consigned to plaintiff, were jettisoned or washed overboard. Before the commencement of an action upon a complaint seeking a recovery on each certificate, as a separate cause of action, the attorneys of the parties entered into a stipulation, in evidence, which recites the payment to B. of $9,600 on account of the loss under the certificates in question and that there is “ still payable thereunder the further sum of $700, which has not yet been paid owing to the question raised ” as to whether the same should be paid to B. or to plaintiff. The stipulation in terms dispensed with the filing of formal proofs of loss and of interest in the property insured, as a condition precedent to the commencement of the action. The automobiles were never delivered to plaintiff and, until the trial, defendant made no claim that they were not lost through the perils insured against, nor did the defendant offer any evidence as to whether the loss did occur. Held, that the plaintiff had established a prima facie case that said loss did occur through the perils insured against.</p> <p>The certificates contained no provision limiting the time within which an action must be commenced, and while the open policy, produced on the trial by defendant, did contain such a provision, no evidence was offered which indicated that the policy had ever been in the hands of plaintiff and at no time within the year following the loss did defendant or its agents deny liability under the certificates in suit or inform plaintiff as to the time within which, by the terms of the policy, an action could be commenced, and the defense of the one-year limitation was not set up in defendant’s answer. Held, that defendant’s contention that no recovery could be had because the action was not commenced within one year from the date of the loss was untenable.</p> <p>The certificates in suit covered the ■ automobiles which plaintiff had bought and paid for, and defendant in issuing the certificates assumed an obligation direct to plaintiff as a holder in good faith and for value, and was not warranted in making payment to B. without insisting upon the production of the certificates, and under the rule that where one of two innocent parties must suffer, the loss must fall upon the defendant as being the one that made the loss possible, and a verdict will be directed in favor of plaintiff for the amount claimed, with interest.</p>

<p>Education Law — mandamus to compel board of education of the city of Auburn to fix salary pursuant to Education Law, article 33-B — construction of statutes — when court warranted in adopting interpretation placed on statute by commissioner of education — meaning of words “ year of service ” in Education Law, section 888.</p> <p>All statutes are to be construed as having a prospective operation unless a retroactive effect is declared or the language is so clear, strong and imperative that a contrary intention is clearly apparent.</p> <p>In 1917 the Education Law was amended by adding thereto article 33-A (§§ 865-881) by chapter 786 of that year, and by virtue of section 872(6) the annual salaries of the teachers in the public schools of Auburn continued to be fixed as they had been for years previous by such contract as the teachers and the board of education saw fit to make. In 1919 the Education Law was amended by adding thereto article 33-B (§§ 882-889), fixing the salaries of the members of the teaching and supervising staff, and section 888 provided that a teacher serving under a schedule which provided for annual increments should receive for any given year of service the salary and the increments provided in said schedule for the year which corresponds to her year of service unless her services for the year immediately preceding have been declared to be unsatisfactory to the board of education. By chapter 680 of the Laws of 1920 section 886 of the Education Law was amended by changing the minimum salary for the first year of service from $720 to $1,000, and was again amended by chapter 851 of .he Laws of 1923 by fixing the annual increments to be paid to teachers in the elementary schools of cities having a population of less than 50,000, at $75. The said amendatory act of 1920 also added to the Education Law section 888-b which pertains to union free school districts.</p> <p>The petitioner, who has been a competent and faithful teacher in one of the grade schools of the city of Auburn for upwards of twelve years last past, and whose present salary is $1,475, upon the claim that she is entitled to at least the $1,000 provided as the minimum salary for teachers in her class for the first year of service, and an increase at the rate of $75 a year for at least eight years of her service, although three of those eight years antedate the passage of article 33-B of the Education Law, upon which she relies, applies for a peremptory order of mandamus to compel the board of education to adopt a resolution fixing her annual salary for the school year 1923-1924 at $1,600. Held, that as no appeal has ever been taken from the determination of the commissioner of education that it was not mandatory upon the board of education to give annual increments for years of service rendered prior to the enactment of article 33-B of the Education Law and the binding force of his decision has been acquiesced in at least by silence, and the legislature not having in the enactment of chapter 851 of the Laws of 1923, by which section 888 of the Education Law was not altered, manifested any dissent from the interpretation placed upon the statute by the commissioner of education, the court was warranted in adopting such construction and the motion will be denied, but without costs.</p> <p>The words “ year of service ” in section 888 of the Education Law refer to service performed since 1919, when article 33-B of that statute, fixing the salaries of the members of the teaching and supervising staffs, went into effect, and not prior thereto, and said section 888, so far as it applies to salaries to be paid in cities of the third class, requires a minimum salary to be paid to members of the teaching and supervising staffs in elementary schools of $1,000 plus the annual increment for each year of service since 1919, but not before.</p>

<p>Executors and administrators — accounting — power of Surrogate’s Court to authorize sale of decedent’s real property may only be exercised pursuant to Surrogate’s Court Act, section 236 — when petition to sell decedent’s real property for payment of debts, funeral and administration expenses deemed insufficient — when administrator not entitled to commissions on avails of sale of real property —■ when recourse may be had to administrator or to personal estate to meet deficiency judgment— when administrator, deemed agent for heirs — Surrogate’s Court has no power to direct sale of decedent’s real property for payment of mortgage debt.</p> <p>The power of the surrogate to authorize a sale of a decedent’s real property is purely statutory and can only be exercised when the facts required by section 236 of the Surrogate’s Court Act are made to appear to his satisfaction, and unless these facts exist at the time of the granting of such an order he has no jurisdiction to grant it.</p> <p>A petition for leave to sell decedent’s real property for the payment of debts, funeral expenses and expenses of administration, which while alleging that the personal property was insufficient to pay the just charges and demands against the estate, a mere conclusion, fails to set forth as required by section 236 of the Surrogate’s Court Act a schedule showing the funeral expenses and the claims allowed by the administrator and the value of the personal estate in his hands applicable for that purpose, is insufficient.</p> <p>Upon such a petition certain of the real property of the decedent was sold by the administrator pursuant to an order granted by the surrogate, and upon the proceedings for the settlement of the accounts of the administrator it was conceded by him that a sale of a considerable portion of the personal estate, made after the execution and delivery of an administrator’s deed of the said real property, realized sufficient funds to meet all just charges against the estate, except one presented to him after the commencement of the accounting proceeding and which he did not object to paying. Held, that the administrator was not entitled to commissions upon the avails of the sale of the real property, as the surrogate had no power to authorize such sale.</p> <p>The excepted claim was that of one T. for the full amount of a second mortgage upon premises other than those sold by the administrator, with interest remaining unpaid. Some time between the date of the first hearing in the accounting proceeding and the date to which such hearing was adjourned, an action to foreclose the mortgage was begun, and the attorney who represents both the administrator and the claimant asks that the estate be not presently distributed, but that sufficient funds be held by the administrator to meet any possible deficiency judgment arising upon the sale in foreclosure. Held, that upon decedent’s death the title to his real property became vested in his heirs, burdened with the lien -of said mortgage, which they under section 250 of the Real Property Law must satisfy, and recourse may not be had to the administrator or to the personal estate for such purpose./</p> <p>The surrogate never having acquired jurisdiction to direct a sale of the real property for the payment of debts, the administrator will be deemed to hold the moneys arising from such sale as agent for the other heirs. Such moneys form no part of the personal estate of the decedent and the administrator having paid over to creditors the amount of their claims, the decree to be entered upon the judicial settlement of the accounts of the administrator will provide that the balance of the personal estate remain in his hands and be so held until the contingent claim of T. becomes fixed and determined.</p> <p>Such decree will further provide that in case a deficiency judgment be entered in the foreclosure action, upon proof of the amount of the same, it be paid out of the moneys remaining in the hands of the administrator so far as the same will reach; should there be no deficiency judgment or the amount thereof be less than the amount of moneys so remaining in the hands of the administrator, then such moneys or the balance thereof, after payment of a deficiency judgment, if any, be distributed in accordance with the Statute of Distribution.</p> <p>The Surrogate’s Court has no power to direct a sale of a decedent’s real property for the payment of a mortgage debt, and neither section 244 nor section 269 of the Surrogate’s Court Act is applicable to the situation here shown.</p>

<p>Proceedings upon an accounting and to construe a will.</p>

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

<p>Taxation— action in equity to cancel ancient tax entry as cloud on title — failure of officials to certify returns of unpaid taxes to state comptroller — evidence did not disclose that taxes for 1860, 1868, 1869 and 1872 had not been paid — present owner of parcel entitled to judgment directing cancellation of old levies.</p> <p>The estate of Commodore De Kay in 1860, 1868 and 1869 owned a forty-eight acre tract of land in Richmond county, and in those years and also in 1872 the taxes assessed against said land were indicated on the assessment rolls as being assessed against the property of one De Kay. It appeared, however, that said taxes were not reassessed in the year following any one of said assessments, with a description of the property, in the manner provided for assessing nonresident taxes. By reason of the omission of the proper officials to make and certify proper returns to the comptroller of the state, of unpaid taxes, the comptroller of the city of New York to which all rights of the county of Richmond in the premises have passed, is without power to collect said taxes. Held, that in an action by the present owner of the land he was entitled to a judgment directing the comptroller or other proper official to cancel the four old levy entries of the above-mentioned years on the books in his custody, with a proper reference to the decision herein.</p>

<p>Cross-motions for judgment dismissing' the complaint and for summary judgment.</p>

<p>Action to recover money paid on account under a sales contract.</p>

Appeal by the plaintiff from a judgment in favor of the defendant, dismissing the complaint upon the merits, entered in the Municipal Court of the city of New York, borough of Manhattan, ninth district.

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, in favor of defendant dismissing complaint, with costs.

<p>Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, in favor of defendant.</p>

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, sixth district, after trial by the court with a jury.

Appeal by defendant from an order of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of plaintiff granting motion for summary judgment and from the judgment entered thereon.

<p>Costs — motions by defendant for retaxation granted in five separate actions in Supreme Court in which same jury returned verdict for plaintiff for total amount less than fifty dollars — witness fees granted in each case — Civil Practice Act, §§ 1470-1476, construed.</p> <p>When a plaintiff is denied costs by reason of section 1472 of the Civil Practice Act because his recovery is less than fifty dollars, the fact that he is also denied costs by reason of the provisions of section 1474 relating to jurisdiction of other courts in which he might have brought his action does not prevent the defendant from becoming entitled to costs by virtue of the first portion of section 1475.</p> <p>Accordingly, motions by the defendant for the retaxation of costs in five separate actions in the Supreme Court should be granted, where it appears that the actions are separate and distinct from each other; that they have all- been tried at the same time before the same jury; and that a verdict in favor of the plaintiff in the four actions for a total amount less than fifty dollars has been rendered.</p> <p>The defendant is entitled also to witness fees in each case, since it appears from the affidavits that each witness was subpoenaed in each case.</p>

<p>Wills — probate proceeding — power of attorney stricken out because seal of city or town where German notary resides not affixed as required by Real Property Law, § 301, subd. 8 — in New York county Surrogate’s Court notice of appearance for non-resident parties must be accompanied by written authority of client — notice of appearance and objections to probate stricken out.</p> <p>In a probate proceeding a power of attorney which does not have affixed thereto the seal of the city or town in which the German notary resides, as required by subdivision 8 of section 301 of the Real Property Law, will be stricken out</p> <p>In the New York county Surrogate’s Court it is the practice in the ease of nonresident parties to require the filing with the notice of appearance of a writing properly executed by the client authorizing the appearance of the attorneys.</p> <p>The notice of appearance filed in this proceeding for the non-resident parties is not supported by the necessary written authorization and, therefore, should be stricken out, together with the objections filed to the probate.</p>

<p>Appeal by defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, entered upon an order granting a motion for summary judgment and also from said order.</p>

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

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of The Bronx, second district, after trial by the court without a jury.

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

Appeal by plaintiff from a judgment of the City Court of the city of New York dismissing the complaint at the conclusion of the plaintiff’s case.

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, dismissing the plaintiff’s complaint after trial by the court without a jury.

<p>Appeal by plaintiff from a judgment of the Municipal Court of the city of New York borough of Manhattan, second district, in favor of defendant.</p>

<p>Action in ejectment.</p>

<p>Trial — new trial — motion for new trial made before justice presiding at trial may be upon minutes but when made before term where final judgment is made must be upon case settled.</p> <p>A motion for a new trial where specific questions of fact have been tried by a jury may be made before a justice presiding at the trial upon the minutes but when made before the term where the motion for final judgment is made the motion must be made upon a case settled, as required by rule 221 of the Rules of Civil Practice.</p> <p>Accordingly, an application for a new trial of specific questions of fact in an action for divorce tried before the judge and a jury at Trial Term when made at the Equity Term of the court must be upon a ease settled and not upon the minutes of the trial.</p>

<p>Action on sight draft.</p>

<p>Action for annulment of marriage.</p>

Motions to correct pleading, to separately state and number causes of action, to make complaint more definite and certain and to strike out unnecessary allegations in complaint.

<p>Wills — probate denied on ground that paper offered was not will of decedent — decedent was mentally incapacitated from making will — execution of paper was induced by fraud and undue influence on part of proponent.</p> <p>Probate must be denied to a paper offered as the last will and testament of a decedent on the ground that the paper offered was not the will of decedent since it appears that the proponent, who is the sole legatee under the will, first made the acquaintance of the decedent, a woman then eighty-four years of age and in very poor health, in August, 1923, and was very attentive to the decedent for several weeks; that in October following she engaged a lawyer, who drafted the decedent’s will under the directions of the proponent; that the will recited that no bequest was made to decedent’s sister inasmuch as she had ample means for her support, which statement was not true; that the proponent had the will signed by the decedent in the presence of one witness and on the same or following day called the attending physician who acted as a witness to the will also, but the attestation clause was not signed in the presence of the decedent but in the office of one of the witnesses; and that there is no proof offered by the proponent that the decedent knew the contents of the will or that the will had ever been read to the decedent or was ever in her possession except at the time when it was signed by her.</p> <p>Under the circumstances recited the ordinary proof of the factum of the will is not sufficient to satisfy the surrogate that it was the will of the decedent. It was incumbent upon the proponent to establish by competent evidence either that the will was read to the decedent and that she knew its contents or that she had intelligent knowledge thereof, and that burden the proponent did not meet.</p> <p>While there was expert testimony both that the decedent was and was not mentally capable of making a will, still in view of the circumstances under which the will was executed and the fact that it cuts off all relatives and leaves all the property to a stranger who was known to the decedent for only a few weeks, it must be held that the burden of proof as to mental capacity has not been sustained by the proponent.</p> <p>The evidence offered by the proponent as to statements made by the decedent after the execution of the will and in favor thereof is not sufficient to establish volition on the date that the paper was executed.</p> <p>It must be held as a matter of law that fraud and undue influence were perpetrated upon the decedent by the proponent in securing the execution of the alleged will, in view of the circumstances recited above and also in view of the fact that the proponent procured the execution of powers of attorney in her favor and shortly thereafter removed the decedent from her home and kept her in nursing homes from that time until the time of her death, where she was under the absolute control of the 'proponent; and that the proponent gave false instructions to at least one nursing home that decedent’s attorney prohibited any one calling on the decedent; and at all times kept the alleged will in her possession;</p>

<p>Trusts — action by testamentary trustees for judicial settlement of their accounts and for judgment directing apportionment of stock dividends between capital and income — railroad company transferred coal properties to coal company organized by its officers — stockholders of railroad company, including trustees, given privilege of subscribing for stock in coal company — trustees having made such subscription sold portion of stock of coal company at premium to secure funds to pay subscription price — subscription privilege granted to trustees belongs to capital of trust estate — subscription to stock of coal company may not be considered in apportioning stock dividend of railroad company — trustees in apportioning stock dividend between capital and income directed to follow rule in 209 N. Y. 460, 484.</p> <p>In an action brought by testamentary trustees for a judicial settlement of their accounts, and particularly for a judgment directing how a stock dividend paid by a railroad company shall be apportioned between capital and income, it appeared that the railroad company determined that its coal properties should be segregated and promoted a new company to be managed by its officers, to which company the coal properties were sold; that the stockholders of the railroad company, including the plaintiff trustees, were given the privilege of subscribing to the stock of the coal company, which privilege they exercised; and said trustees in order to pay for the stock of the coal company, to which they had subscribed, sold a portion thereof at a premium and allocated the remaining shares of said stock proportionately to the trusts and accounts in which the stock of the railroad company was held.</p> <p>Held, that the book value of the railroad company’s capital was not depleted by the coal company transaction for the proceeds of the sale of the coal properties were received by the railroad company and entered into its capital account in place of the property sold and the book value of the assets and the stock was increased thereby;</p> <p>That the subscription privilege granted to the trustees was an incident of stock belonging to the trust estate and, 'therefore, belongs to the capital thereof;</p> <p>That the subscription to the stock of the coal company may not be considered in apportioning the stock dividend of the railroad company between capital and income, and the trustees are directed in making such apportionment to disregard the coal company transaction and follow the rule laid down in the Osborne Case, 209 N. Y. 450, 484.</p>

<p>Elections — Election Law, § 136, subd. 3, providing that signatures to designating petitions if they bear different dates shall be counted in the order of their priority of date is mandatory — signatures of voters on designating petitions duly filed cannot be counted on subsequent petition which said voters also signed — evidence insufficient to establish that signers of petition were “ floaters.”</p>