Volume 13 — New York Miscellaneous Reports

<p>Appeal from a judgment of the District Court in the city of ¡New York for the seventh judicial district.</p> <p>Action for broker’s commissions.</p>

Ejectment by Isabella S. Griswold and Olivia E. Griswold, against Hary E. Little. The action was brought to recover possession of an acre and three-quarters of land at Bay Ridge, in the county of Queens. At the trial the following facts appear: In 1854 one Zachariah Griswold died intestate and seized of the premises in suit. His heirs were his four children and the son of a-deceased child.

<p>Motion for a certificate of reasonable doubt pending appeal from a conviction for extortion in the Court of Oyer and Terminer in New York county.</p>

On the trial the defendant offered to show as a defense to-the charge of nonsupport of his wife that she had been guilty of adultery and for that reason he had refused to support her'; this proof the police justice refused to receive, and held that a husband was bound to support his wife although, she was an adulteress. The defendant excepted.

<p>Appeal from a judgment of a Court of Special Sessions, convicting defendant of the crime of assault in the third degree.</p>

<p>Appeal from judgment convicting defendant of being a disorderly person.</p>

<p>Unless it is made to appear that the defect was one from which a reasonable man might anticipate that injury might occur, the fact that the construction complained of had proved to be safe and convenient in practice, and that no other accident had ever happened because of it, requires the court tó hold that there was no negligence and to dispose of it as a question of law. Negligence cannot be inferred from the mere happening of a single accident in such?a casq,</p> <p>While plaintiff, who was using a crutch, was crossing the avenue he was thrown down and injured by his crutch going into a hole in a manhole cover between defendant’s tracks, which hole was cast in such cover when originally constructed as a means by which to speedily lift the cover when required. The cover had been in position for several years and no other accident had happened. Held, that defendant was not negligent in adopting this construction of the manhole cover, and that the complaint should have been dismissed.</p>

<p>Appeal from judgment in favor of the defendant, entered on a verdict directed by thte court.</p>

<p>In an action involving the value' of professional services the jury are not hound by the expert testimony, hut may judge of its weight and force, and determine the reasonable value of the services from the evidence as to their nature, the time occupied in them and the benefit derived from them.</p>

<p>Appeal by defendants from judgment on verdict directed against them by the court, and from order denying new trial.</p>

<p>Where a party threatens to do only what he has a legal right to do there can be no duress.</p> <p>Plaintiff, who was employed by defendant, was charged, while absent from home, with having received money belonging to the latter which he refused to pay over, claiming that it belonged to him, and was informed ■ that unless he did so his services would be no longer required, and on his return home paid over the money. 3eld, that such payment was ’ purely a matter of business policy and could not be held to have been made under duress.</p>

<p>An order for a hill of particulars will not he granted on the affidavit of the attorney.</p>

<p>Appeal from order overruling a demurrer to the complaint.</p>

<p>. An order for the examination of a defendant before trial as to the number of articles manufactured and sold by it under a license from the plaintiff during a specified time should be vacated where the answer and moving-affidavit positively state that no articles covered by such license were manufactured or sold by the defendant during such period.</p>

<p>Appeal from order and interlocutory judgment sustaining demurrer.</p>

<p>Appeal from order extending a receivership.</p>

<p>A landlord is not liable for injuries received by a tenant from the fall of plastering in her apartments, although he had promised to make repairs and the ceiling was out of repair at the time, where the proximate cause of such fall was the slipping of a servant of an independent contractor while laying the floor in the apartment above, which pushed his foot through the ceiling,</p>

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

Appeal from judgment in favor of the plaintiff, entered upon a verdict directed by the court, and from order denying motion for a new trial;

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

<p>Appeal from order denying motion to compel the respondent to assign a liquor license to a receiver appointed in supplementary proceedings.</p>

<p>In an action for goods manufactured pursuant to order, the defense was want of authority in defendant’s buyer to order without ratification by defendant's superintendent of stock, and that the order had been revoked with the consent of the plaintiffs. On these points the evidence was conflicting. Held, that a verdict in favor of the defendant would not be disturbed.</p>

<p>In an action for goods sold and delivered during a period of fourteen months, t'he answer admitted the delivery of goods to the amount claimed and alleged payment. Thereafter defendant moved on an affidavit of her counsel, stating that he had examined the "bill of particulars and found it grossly inaccurate in respect to the amount, time and value of the goods, and in over forty places in the addition of the various items, for leave to amend the answer by withdrawing the admissions and interposing a denial, but retaining the plea of payment. Held, that the motion was properly denied.</p>

<p>A defense in favor of an accommodation indorser is not available against the transferee from one who took the note for value before maturity without notice of the facts, although such transferee took the note in payment of an antecedent debt and had knowledge of the facts.</p>

This is an action brought for the construction of the last ■will and testament of William Horndorf, late of the city of Rochester, FT. Y., deceased, and demurrers to the complaint, are interposed by the several defendants. By this instrumentality the facts alleged in the complaint stand admitted, and such questions of law as are essential to the proper and final disposition of the case are fairly presented.

<p>A corporation organized under the act of 1848 for the purpose of printing, publishing and selling newspapers, has no other powers except such as are incident to that occxipation.</p> <p>An offer by such a corporation to give a certain sum to the heir of any one who meets death by accident while in the pursuit of his ordinary vocation, and who has upon his body a copy of the paper of the current-date, is not within its powers, and is ultra vires and void.</p> <p>Where the act or contract of a corporation is not within the scope of its powers to perform under any circumstances, the doctrine of estoppel cannot be invoked to make it good.</p>

On the 20th day of February, 1804, the mayor, aldermen and commonalty of the city of New York granted to Lewis Lorton, the predecessor in title of the plaintiffs, in the usual form of water grants, the strip of land under water, fifty-five feet six inches in width, in front of his upland and extending some 210 feet to West street.

<p>Where the facts show a proper case, a court of equity will intervene to redress or prevent a fraud and will enforce an agreement notwithstanding the Statute of Frauds.</p> <p>The mother of the parties sold the estate left by their father and invested the proceeds of the sale in the purchase of certain premises in her own name. She subsequently conveyed said premises to the defendant for a nominal consideration with the understanding that he should hold them for the benefit of all the heirs. Subsequent to the death of the mother defendant admitted that the property was to be divided between the heirs, but refused to do so unless certain bills were allowed, and proposed to give a portion to an uncle, and subsequently conveyed said property to his wife. Held, that the conveyance to defendant was upon an implied trust to convey their respective interests to the several heirs and t&t equity would intervene to compel performance of the trust and to prevent a fraud. &</p>

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

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

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

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

Motion for a new trial on exceptions ordered heard in the ¡first instance at General Term after a dismissal of the complaint

<p>Plaintiff was sent by one of defendant’s engineers to procure some paint for him, and on his return found the engine gone. He then went to the flaghouse and told the switchman about his errand. After waiting there for about an hour another engine passed, the engineer of which saluted with a wave of his hand as he passed, and the switchman told plaintiff - that perhaps that was the engineer who had sent him for the paint and he might be looking for him, whereupon plaintiff undertook to jump upon the next to the last car of the train, and was thrown off by a jar and seriously injured. In an action for such injuries, held, that the accident was the result of plaintiff’s indiscretion in attempting to board a moving train, and that defendant was not rendered liable therefor by the conduct of the switchman.</p>

Action to recover damages for personal injuries alleged to have been caused through the negligence of the defendant’s employees. Plaintiff, who was a night watchman, while sitting outside the premises he was employed to watch, was struck on the knee and thigh by a' large clinker which fell from one of defendant’s engines, causing serious injury thereto and incapacitating him from working at his ordinary occupation as a mechanical engineer.

<p>Application for a writ of prohibition.</p>

<p>Where the police justice has authority to try summary proceedings only ' as a Court of Special Sessions, it is error to refuse to allow the defendant a trial by jury, if demanded by him.</p>

Motion by the defendant upon the minutes of the court for a new trial.

<p>No recovery can be had in an action to rescind a sale and recover the' money or securities given thereon, on the ground of. false representations, in the absence of proof of scienter on the part of the defendant.</p> <p>Where parties contract upon the apparent value .of property and the vendor acts in good faith with reference to such value, no presumption of fraud arises against her, although' the actual value is less than, the apparent value in consequence of conditions of which she was ignorant.</p> <p>Plaintiff purchased two canal boats of defendant, relying on representa- - tions of the latter’s husband, made in her presence, that they were good grain boats and that the timbers were sound; that they were about twelve or thirteen years old, and were good to carry grain for six or seven years, and gave therefor a conveyance of a house and a chattel mortgage. At the time in question the boats had just come off a dry dock, to which they had been sent "with instructions to put them in complete repair, and they had been newly painted. On attempting to have them rated to carry grain the insurance rater found, on taking off the covering of the timbers and boring into them, that they were badly decayed, and refused to give a rating. In an action to rescind the sale' on the ground of false representations, and for a return of the conveyance and mortgage, held, that the facts did not show knowledge on the' part of the defendant of the falsity of the representations at the time they were made, and, therefore, that the action could not be maintained.</p>

<p>The power of appointment of subordinates conferred upon the superintendent of public works by section 3 of article 5 of the Constitution is limited by and to be exercised subject to the provisions of section 9 of the same article, requiring appointments in the civil service to be made according to merit and fitness, to be ascertained, as far as practicable, by examinations.</p> <p>New legislation is not necessary to give effect to section 9 as to the department of public works, as the civil service laws in existence when the Constitution was adopted were continued, and may be used to give effect to said section.</p> <p>The relator was appointed by the superintendent of public works in April, 1895, as clerk to the collector of canal statistics at Albany. He passed no examination for the position, and his name was not certified to the comptroller by the civil service commission. On application for a mandamus to compel the comptroller to draw a warrant for his salary, held, that relator’s appointment was in violation of the Constitution, and of the civil service laws of the state.</p>

<p>Action for conversion.</p> <p>The facts appear fully in the opinion.</p>

<p>When the sureties in an undertaking to stay execution of a judgment against the defendant on appeal are obliged to pay the amount of their undertaking, they become equitably subrogated to the rights of the plaintiff against the defendant under the judgment, including a right of action against the defendant’s bail.</p> <p>An undertaking of bail covers not only the principal judgment, but the-subsequent judgments for costs on appeal.</p> <p>There being the principal judgment, a judgment for costs on appeal to. the General Term and two judgments for costs on appeals to the Court of Appeals, and the sureties on the appeal to the General Term having paid the amount of the two first judgments, held, that the judgment, creditor could maintain an action against the bail for the whole amount, and be accountable to such sureties for their equitable portion.</p>

<p>Appeal by defendant O’Hara from order continuing injunction during pendency of the action.</p>

<p>A receiver appointed in an action' of partition, to which all persons interested were parties, may maintain an action for rent after the co-tenant in possession has recognized the receiver’s title by joining in the execution oí a lease by him in which she agrees to pay him a stated rental.</p>

<p>Action to compel the execution of a conveyance by the 'defendants.</p>

<p>Action to redeem land from a mortgage.</p>

The defendant was indicted April 2'T, 1895, charged with the criminal offense of recording and registering bets and wagers, and of selling pools upon the result of trials and contests of speed and power of endurance of horses, on the 25th day of April, 1895. A demurrer to said indictment was interposed, and the objections presented thereby were brought on to be heard by the court.

<p>Municipal authorities cannot be enjoined from removing unauthorized incumbrances from sidewalks or streets.</p> <p>Under the ordinances of the city of New York an awning extending across a sidewalk and covered with wood is illegal.</p> <p>Business cannot be conducted upon the public streets, and the constant placing out of show cases for the exhibition and sale of goods is unauthorized and illegal.</p> <p>Bay windows, erected without a permit, which extend nearly six feet beyond the house line, are Incumbrances.</p>

Habeas corpus proceedings to review the conviction of , relator of the crime of carrying on the business of a barber on Sunday in the city of Brooklyn.

<p>Appeal from the judgment of a police justice, convicting the defendant of a violation of a village ordinance.</p>

<p>To entitle a party to rescind a contract and recover the amount paid thereon he must return what lie has received under it.</p> <p>After the lapse of ten years from the recovery of a judgment for costs against his brother, plaintiff paid to defendant, the attorney who recovered the judgment, .something- less than its amount on his agreeing to procure its discharge. Defendant immediately requested his client to execute a satisfaction, which he refused to do. Held, that plaintiff could not rescind and recover hack the money paid by him without returning the defendant’s agreement or releasing him therefrom.</p>

Appeal by the defendant from a judgment of this court convicting him of a violation of that part of section 2 of chapter 385 of the Laws of 1870, as amended by chapter 622 of the Laws of 1894, which makes it a crime for a contractor with a municipal corporation for the construction of public works to employ an alien as a laborer upon such works.

Action to recover damages for personal injury. Plaintiff was a yard switchman in the employ of the defendant. While the yard engine and crew were removing cars from the cripple track to the other tracks, the conductor called out “ wrong pin,” •meaning that the pin had been drawn from the wrong end of the link.

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

Wbit of alternative mandamus, involving issues of fact arising upon the denial in the return of material allegations of the writ, tried before the court without a jury, by consent, Hay 2, 1895, and afterwards submitted upon written points. The object of the writ is to compel the defendants to restore the relator to membership in said association, upon the ground that his expulsion therefrom was illegal and void.

Action to recover the sum of $500 alleged to he due upon a a certain certificate for five shares of stock issued by the defendant to the plaintiff.

<p>Actions to restrain the collection of taxes reassessed under the act of 1883.</p>

Demurrer to complaint. Action by a taxpayer of the town of Woodbury against the board of supervisors, the town of Woodbury, the supervisor and other town officers thereof and the heirs of one Hiram Ostrander to restrain the payment to the latter of the sum of $300 pursuant to chapter 664, Laws of 1892.

<p>The words “when the petition is presented ” in section 3479 of the Code refer to the time when it comes before the surrogate on the return of the citation and not to the time of its filing.</p> <p>Chapter 934, Laws of 1895, annexing a part of the county of Westchester' to the county of New York, is unconstitutional.</p> <p>The legislature has no power under the Constitution to alter county lines by taking from one county and adding to another, but only to divide a county into two or more where the original county has grown too large for the convenience of the people.</p>

<p>The comptroller of the city of Brooklyn may be required to certify that the means required to make payments under a contract are provided and applicable when a requisition for the issue of bonds for that purpose has been made, without waiting for their sale.</p>

The mortgage was made by the widow after she had purchased the property at the foreclosure sale of a mortgage given by her deceased husband. The other facts appear in the opinion.

The relator having applied for a peremptory writ of mandamus to compel the defendants to recognize him as the duly elected police justice of the village of Wappingers Falls, such •writ was granted in the first instance, there being no question of fact raised. The order being affirmed at General Term, and also by the Court of Appeals (144 N. V. 616), the relator applied to the court for an assessment of damages against the defendants.

<p>A magistrate has no jurisdiction to commit an accused after examination to answer a charge of crime to a court having cognizance of the crime, unless there was some evidence before him that the accused committed the crime.</p> <p>The accused may by means oí the writ of habeas corpus have it ascertained whether there was such evidence, and if there was not, he is entitled to be discharged for lack of jurisdiction in the magistrate to make the order of commitment.</p>

Aotioh to foreclose a mortgage given on real and personal property, and franchise, by a business corporation organized under chapter 611 of the Laws of 1875.

<p>Trial of a charge for violation of the Excise Law.</p>

<p>Appeal from judgment of Special Term.</p>

<p>Appeal from judgment entered on the verdict of a jury and from order denying motion for new trial.</p>

Appeal by plaintiffs from judgment entered in favor of the defendants upon the verdict of a jury and from order denying plaintiffs’ motion for a new trial.

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

<p>Appeal from judgment of the Special Term.</p>

Cross-appeals by the plaintiff and tfie defendants respectively from a judgment entered on a verdict directed by the trial judge.

<p>Appeal from judgment in favor of defendant, entered upon verdict, and from order denying motion for a new trial.</p> <p>Action to recover broker’s commissions.</p>

<p>Appeal from- judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.</p> <p>Action for personal injuries.</p>

<p>Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.</p> <p>Action for personal injuries.</p>

<p>Appeal by defendant from judgment on verdict for plaintiff and from order denying motion for new trial.</p>

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

<p>Appeal from judgment in favor of defendants, dismissing the complaint.</p>

<p>Apfeal from judgment in favor of plaintiff.</p>