Volume 131 — New York Appellate Division Reports

<p>Contract for sale of corporate stock and franchises construed — sale by stockholder not sale by corporation — pleading — allegations of fraud — conclusions — when evidence of fraud inadmissible — amendment at trial—reliance upon false representations essential.</p> <p>A contract to purchase all the stock aud assets of a corporation awning railroad franchises for a certain sum in cash, part to he paid on delivery of the contract and various, installments at stipulated times, with.a provision that the whole should become due afl.er thirty days’ default in payment of any installment, should be construed to mean that the stock and assets were to he turned over to the purchaser only when he made the final payment, and not in parts proportional to the installments paid.</p> <p>An agreement by an individual to sell all the stock and assets of a corporation owned or controlled by him is valid and not contrary to law, as a sale by a corporation of all its property and franchises, for the contract is not that of the corporation but of an individual.</p> <p>An allegation that the franchises agreed to he sold “ were invalid and worthless ” is a mere conclusion of law, not constituting a defense to an action for the purchase price. Hence, it is not error to refuse to allow the defendant to show the invalidity of the franchises, for facts constituting fraud must he pleaded in order to allow the introduction of evidence of fraud.</p> <p>-So, too, allegations that the franchises were “fictitious, invalid and illegal” are mere conclusions insufficient to raise an issue of fraud.</p> <p>A plaintiff is not compelled to demur to affirmative defenses on the ground of insufficiency, but can raise the question at trial. This, because a defendant is bound to plead what he is compelled to prove as a defense..</p> <p>A defendant whose allegations of fraud are mere conclusions should not be per-, mitted to amend at trial so- as to allege the facts, where it appears that all the facts were in his possession before service of the answer, and he proposed a settlement of the action. "</p> <p>A party who has agreed to buy the franchises of a corporation cannot avoid the obligations of the contract on the ground of false representations by the seller where the evidence shows that before executing the contract he submitted .the question of the validity of the franchises to his attorney. Reliance upon false representations is a necessary element of such defense.-</p>

<p>Contract —• agreement to pay officer of a corporation bonus for placing contract — trial — defense may be taken under general denial — appeal.</p> <p>A director of a corporation cannot recover upon a contract to pay him a certain sum for inducing his corporation to award to the defendant a contract for improving its lands, even though the agreement was made with the knowledge of the plaintiff’s codirectors. Such contract is illegal and void as against public policy.</p> <p>The defendant may make the defense that the contract was illegal under a general denial.</p> <p>Where a contract sued upon is bad in law, and there is no possibility of proving á different* contract on a new trial, the appellate-' court will' dismiss the complaint.</p>

Appeal by the plaintiffs, Morris Levy and another’, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Mew York on the 19th day of Movember, 1908, pursuant to an order made at the Mew York Special Term and entered in said clerk’s office on the 13th day of Movember, 1908, dismissing the complaint and granting judgment upon the pleadings, and also from the said order upon which such judgment was granted.

<p>Beal property — equitable conversion — will construed — when conversion takes place at time of sale.</p> <p>In general an equitable conversion of real property when it is converted at all is deemed to have taken place at the death of a testator. Such conversion, however, may take place-upon the happening of a designated event, or at some futuré time, if such be the intention.</p> <p>Thus, where a testator placed his lands in trust for the life of his widow, certain portions thereof not to be sold- without her consent, but the other portions to be sold in the discretion of the trustees, with remainders over to his children at the life tenant’s death, subject to deductions for advancements made to the remaindermen,-there was no conversion of the lands into personalty at the testator’s death. The conversion was postponed until the death of the widow unless the trustees sold sooner under the discretionary power.</p> <p>Hence, a husband of one of the remandermen who under the laws of Pennsylvania was entitled to her personal property absolutely when she died intestate without descendants, is entitled to take only that portion of the estate coming to his wife which, was actually converted into personalty before her death. He takes no portion of the real property not actually sold.</p> <p>Submission of a controversy -upon an agreed statement of facts, pursuant to section 1219 of the Code of Civil Procedure.</p>

■ Appeal by the defendant, Henry Blitz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 2Íst day of October,. 1908, upon the verdict of a jury rendered by direction of the court after a trial at the Hew York Trial Term.

Appeal by the defendant, John V. Ooggey, as commissioner, etc., from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the- clerk of the county of Hew York on the 19th day of' December, 1908, granting the relator’s motion for a peremptory writ of mandamus.

Appeal by the defendants, Henry Ungrich, Jr., and another, individually and as executors, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 23d day of Hay, 1908, upon the decision of the court rendered after a trial at the Heiv York Special Term.

Appeal by the plaintiff, The People of the State of Mew York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the ,6th day of July, 1908, upon the decision of the court, rendered after a trial at the Mew York Special Term, sustaining the defendant’s demurrer to the complaint and dismissing the said complaint. (See People v. Ahearn, 60 Mise. Eep. 613.)

Appeal by the defendants, the American China Development Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 22d day of April, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of April, 1908, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, George S. Kaighn and another, from • an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Mew York on the 18th day of Movember, 1908, upon the decision of the court, rendered after a trial at the Mew York Special Term, overruling the defendants’ demurrer to the amended complaint.

<p>Pleading — suit to foreclose mechanic’s lien — supplemental complaint asserting equity arising subsequent to lien.</p> <p>A materialman suing to foreclose a mechanic’s lien on a municipal improvement, the original contract for which provided that no moneys should become due the principal contractor until the completion of the work, is entitled to serve an amended complaint showing that after the commencement of the action, the plaintiff in order to complete the work so that a fund might become due to which his lien and that of other contractors might attach, completed the work with the consent and at the request of the city and some of the lienors, and demanding judgment that the value of the work so done be paid out of the fund before it is applied in satisfaction of the mechanic’s liens.</p> <p>Such supplemental complaint, although stating matters arising after the commencement of the action, is consistent with and in aid of the case made by the original complaintj for the plaintiff does not seek to increase the amount of his original lien but to assert a claim upon the fund superior in equity to his'own lien and to those of others.</p>

<p>Appeal by the defendant, Lillian B. Vogel, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 5th day of June, 1908, reversing a judgment of the Municipal Court of the city of New York in favor of the'defendant.*</p>

Appeal by the defendants, William H. Townsend, Jr., and others, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 27th day of November, 1908/ permitting the plaintiff to serve an amended complaint.

<p>Court — surrogate — opening decree — Code Civil Procedure, section 2481, subdivision 6, construed—-correction of judicial error—judgment—conclusiveness of surrogate’s decree.</p> <p>A surrogate cannot open, modify, vacate or set aside his decree, as authorized by subdivision 6 of section 3481 of the Code of Civil Procedure, unless the moving papers show that there has been fraud, or evidence newly discovered, or that a clerical error, as distinguished from a judicial error, has been committed, or that other sufficient cause exists".</p> <p>The surrogate cannot open his decree for a judicial, as distinguished from a clerical error; the correction of the former must be had by appeal.</p> <p>The decree of a surrogate on a final accounting is conclusive only as to matters before the court, and where the claim of an administratrix to personal ownership of bonds left by the decedent was not before the court a' decree settling her accounts is not conclusive as to her title. Hence, next of kin who have brought action to recover the bonds are not aggrieved by the surrogate’s decree so as to be entitled to appeal therefrom. Their rights should- be left for determination in the action.</p>

Appeal by the defendant, The Lorimer-Scholes Company, from a judgment ol the Municipal Court of the city' of New York in favor of the plaintiffs, rendered on the 29th day of May, 1908.

<p>Foods — crime — sale of oleomargarine colored to imitate butter — facts justifying conviction.</p> <p>Where a person calling himself “the butter man ’’ receives an order for a tub of butter, but delivers instead a tub of oleomargarine artificially colored so as to resemble butter, he is properly convicted of a violation of section 26 of the Agricultural Law.</p> <p>The gist of the offense is not deceit in selling the article, but consists in the sale of oleomargarine manufactured “in imitation or semblance of natural butter.”</p>

Appeal by the relator, Charles Koeber, from a final order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of May, 1908, dismissing an alternative writ of mandamus.

Appeals by the plaintiff, the Queens County Water Company, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk-of the'county of Nassau on the 12th day of December, 1908, denying the plaintiff’s motion for an injunction pendente lite, and from a judgment of the Supreme Court in favor of the -defendants, entered in said clerk’s office on the 16th day of December, 1908, upon the decision of the court, rendered after'a trial…

Appeal by the plaintiff, Rosemary Tucker, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the of on the 27th of upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term.'

Appeal by the plaintiff, Charles G. Wessel, from an order of the Supreme1 Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 5th day of October, 1908, granting the defendant Hoffman’s motion to cancel a lis pendens on the execution of an undertaking in the sum of $3,500 for the. payment of any judgment the plaintiff may recover herein.

<p>• Appeal by the defendant, The Gutta. Percha and Rubber Manufacturing Oompany, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk -of the county of Kings on the 4tli day of February, 1908, upon the verdict of a jury for $10,000 rendered by direction of the court after a trial at the Kings County Trial Term, certain questions of fact having been submitted to the jury, and also from two orders entered in said clerk’s office on the 5th and 21st days of February, 1908, respectively, denying the defendant’s motion, made upon the minutes, to set aside the verdict and for a new trial.</p>

<p>Appeal — review of findings in suit in equity — watercourses — obstruction of stream causing injury to riparian owner — liability of municipal corporation — trial—erroneous _ admission of evidence in suit in equity — expert testimony — Statute of Limitations ■— damages.</p> <p>Where a case has been tried by the court without a jury the Appellate Division will not reverse upon the facts unless the findings were against the weight qf evidence, or the proofs so clearly preponderated in favor of a contrary result that it can be said with a reasonable decree of certainty -that the trial court erred in its conclusions.</p> <p>Suit in equity to enjoin a continuing nuisance and trespass by a municipality.. It. appeared that the municipal board of health removed dams which had formerly impounded á stream of water and by so doing left exposed an old abutment,, built by the municipality, which extended into the stream so as-.to divert the water with force towards the plaintiff’s lands, whereby his foundations were damaged and destroyed. On all the evidence, held, that a finding of negligence on the part of the city was justified.</p> <p>In such suit it is error to allow an expert, to give an opinion as to whether the municipality had exercised reasonable care in leaving the old abutment extending into the waterway after the removal of the dams and as to whether such construction was negligent and unskillful, for the judgment .of the witness was substituted for that of the court.</p> <p>But where the trial is in equity without the aid of a jury the old chancery rule obtains, and the error is not ground for reversal unless such as to render the trial unfair or substantially affect the decision.</p> <p>In such suit it is not error to receive evidence as to the skill and propriety of the construction of the structure causing the injury.</p> <p>The fact that the old abutment caused no injury until the dams were removed and the fact that these were taken down by a third party, the municipal board of health, does not shield the municipality if the presence of the abutment made the waterway inadequate and it omitted reasonable care to maintain the stream in proper condition.</p> <p>Evidence examined, and held, sufficient to charge the municipality with notice of the obstruction.</p> <p>In a suit to-enjoin a nuisance, an obstruction of a stream, causing injury to.a riparian owner, he can only recover damages accruing within six years prior to the commencement of the suit. ;</p>

Appeal by the defendant, the Mew York and Queens County Railway Company, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 6th day of March, 1908.

Appeal by the defendant, John D. Lyons, as administrator, etc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Rockland on the 30th day of December, 1907, upon the decision of the court rendered after a trial at the Rockland Special Term.

Appeal by the defendant, Thomas F. O’Neill, from an order of the County Court of Queens county entered in the office of the clerk of said county on the 21st day of September, 1908.

Appeal by the plaintiff, R. Gordon McNeil, from part of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Suffolk on the 28th day of September, 1908.

Appeal by the defendant,- Joseph Loris, from a judgment of conviction rendered against him in the County Court of Suffolk county on the 19th day of December, 1907.

<p>Appeal by the plaintiff, Robert Y. Y. Sewell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of ¡Nassau on the 22d day of June, 1908, upon the verdict of a jury rendered by direction of the court after a trial at the ¡¡Nassau Trial Term.</p>

, Appeal by the plaintiff, Andrew Batchelor, an infant, by John Batchelor, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 23d day of April, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s evidence upon a trial at the Queens County Trial Term.

<p>Contract—assignment of sums to become due under municipal contract — when obligations of surety not altered.</p> <p>Where a municipal contract provides that sums payable thereunder are not assignable except with the consent of the city, a surety of the contractor, who has failed to complete the work after abandonment by the contractor after notice to do so, cannot escape liability for sums expended by the city in completing the work on the theory that there was a substantial change in the contract beóause moneys to become due thereunder were assigned with the consent of the city.</p> <p>It seems, that even though there were no provision prohibiting an assignment, the contract itself and the surety’s right of subrogation to complete the same would not be changed because the city consented to pay to the contractor’s assignee.</p>

Appeal by the defendant, the Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the comity of Kings on the 8th day of March, 1906, upon the verdict; of a jury for $2,000, and also from an order entered in said clerk’s office on the 29th day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Michele Cirenza, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, rendered after a trial without a jury.

Appeals by G. Gordon McCully and Katherine F. Bird from an order of the Supreme Court, made at the Kings County Special Term and entered in the office, of the clerk of the county of Kings on the 17th day of June, 1908, confirming, as modified therein, the report of a referee, the appeal by the said McCully being from the whole of such order, and that by Katherine F. Bird being from a part thereof.

<p>Evidence — special damage not pleaded—sufficiency of objection.</p> <p>One objecting to the admission of evidence of special damage on the ground that it was not pleaded, must point out the express ground of the objection. A mere objection that the evidence cannot be given under the complaint or that the damage is not included in it is too general.</p>

Appeal by the defendant, the Thompson-Starrett Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 27th day of April, 1908, upon the verdict of a jury for $3,500, and also from an order bearing date the 12th day of May, 1908, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

, Appeal by the plaintiff, Bobert Plant, from a judgment of - the Municipal Court of the-city of Hew York, in favor of the. defend-. ants rendered after a trial without a jury. The action was on á promissory note for. $350, the- defendant John Straub being the -maker and the defendant Mina Stranb the endorser, they being husband and wife-.

' Appeal by the defendant, Post & McOord, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 19th day of June, 1908, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 22d day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>Insurance — fidelity of employees — pleading—allegations charging ' corporation with liability for acts of officers — breach of implied conditions.</p> <p>It is a good defense to an action on a policy insuring the fidelity of bank employees to allege that the policy was issued on the faith of a false statement signed by the bank or its agent, one G-., who was authorized by the bank to sign the same, and that his authority to sign was obtained as part of the duties imposed upon him as cashier. The defense is not demurrable on the theory that the false statement is alleged te have been made by the cashier individually, rather than by the bank through his agency.</p> <p>It is immaterial that the bank’s false statement was made through an officer of the bank whose fidelity was insured.</p> <p>There is an implied condition in a contract of insurance of the truth of all representations of the insured material to the risk, on the faith of which the contract is made even though they be dehors the policy. Hence, a false statement may be pleaded as a breach of a condition of the policy without an allegation that it was made fraudulently or by mutual mistake.</p>

. Cebtiobaei issued'out of the Supreme Court and attested on the 26th day of May, 1908, directed to George G. Raymond, mayor of the city of Rew Rochelle, R. Y., and others, aldermen of said city, together constituting the common council thereof, commanding them to certify and return to the office of the clerk of the county of Westchester all and singular their proceedings had in relation to the designation of two official newspapers of the said city for the year 1908.

<p>CouH — jurisdiction of Municipal Court after service of summons-^replevin — form of judgment,</p> <p>A party entitled to the possession, of goods wrongfully withheld may waive his right to replevy and await possession obtained by judgment.</p> <p>On the.service of a summons stating that judgment will be taken.for a specific sum in case of default, the Municipal Court of the city of Jfew York Obtains jurisdiction to render judgment awarding the plaintiff possession of property wrongfully withheld, for when the. defendant has thus been brought, into court the plaintiff may set up any cause of action.</p> <p>In an action of replevin a judgment awarding the plaintiff possession may be entered although the value- of the property be not found or damages assessed.</p>

Appeal by the plaintiffs, Henry Weyand and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 14th day of October, 1908, upon the decision of the court, rendered after a trial at the Queens County Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, the Brooklyn Union Elevated Railroad Company, from a judgment of the Municipal Court of the city of Rew York in favor of the plaintiff, rendered on the 26th day of June, 1908, in an action to recover damages for negligently injuring the plaintiff and his property.

Appeal by the defendant, Clara L. Allen,, from so much of an amended judgment of the Municipal Court of the city of New York, borough of Queens,, rendered on the 30th dáy .óf November, 1908, as awards costs to the plaintiffs and refuses to award costs to the defendant..

Appeal by the defendant, The Transit Development Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the cleric of said county on the 1st day of November, 1907, upon the verdict of a jury, convicting the defendant of maintaining a public nuisance in violation of section 385 at seq. of the Penal Code, and als'o from an order entered in said clerk’s office on the 31st day of January, 1908, denying the defendant’s…

- Appeal by the defendant, Charles M- Higgins, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county ¡of Kings on the 15 th day of October, 1908, denying the defendant’s motion to vacate an order, granted ex parte, as ¡amended, for the examination of the defendant before trial; also from an. order entered in said clerk’s office on - the 30th- day of October, 1908, denying -the defendant’s motion to…

Appeal by the defendant, the Harbor and Suburban Building and Savings Association, from so much- of a judgment of the Supreme Court in favor of the plaintiff, entered in the office-of, the clerk of the county of Kings on the' 14th day of November, 1908, upon .the verdict of a jury for $40,000, as is against the said, defendant, and also from so much of an order entered in said clerk’s office on the 19th day of November, 1908, as denies the said defendant’s motion for a new…

Appeal by the plaintiff, John J. Cone, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 29th day of April, 1908, upon the decision of the court, rendered after a trial at the' Suffolk Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, David F. Murphy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 6th day of April, 1895, upon the verdict of a jury, and also (as stated in the notice of appeal) from an order entered in said clerk’s offioe denying a motion for a new trial made upon the minutes.

Appeal by the defendant, Crandall and Godley Company, from a judgment of the. Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiffs, rendered on the 30th day of Hovember, 1908, in an action brought to recover damages for negligence,

Appeal by the defendants, Joseph FT. Early and another, constituting the firm of Jo.hn Early’s Sons, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 7th day of December, 1908, denying the defendants’ motion for leave to serve an amended answer.

Appeal by James C. Colgate and others from an order of the Supreme Court, made at the Westchester Special'Term and entered in the office of the clerk of the county of Westchester on the 9th day of Povember, 1908, appointing commissioners of estimate and . appraisal herein, and also from an order entered in said clerk’s office on the 4th day of January, .1909, denying the appellants’ motion to vacate and set aside such order.

<p>■ Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 4th day of June, 1908, upon the verdict of a jury for $2,700, and also from an order entered in said clerk’s office on the 30th day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Frederick S. Myers, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westcliester on the 11th day of May, 1908, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the amended complaint.

<p>Will construed — when gift by codicil substituted for that in will.</p> <p>Where a will, malting two specific legacies, states that they were not larger because the legatees were already wealthy, and thereafter a codicil is made, stated to he “ a supplement and addition ” to the will, which is a literal repetition of the will except for slight verbal changes, and an omission of the statement of the reasons for not making said legacies larger, and except for the omission of an executor, the second provision is substituted for the first, and the legatees are not entitled to take both under the will and codicil.</p>

<p>Negligence—duty of dock owners to keep structure in repair — indemnity —liability of wrongdoer for judgment suffered by another — notice to defend — attorney and client — when notice to attorney binding upon corporation.</p> <p>The owner of a pier who invites others to use it is bound to maintain, it. in reasonably safe condition. Where such pier collapsed to the injury of a cargo stored thereon by reason of the fact that the supporting piles had been eaten away by certain worms known to inhabit the waters of the harbor, and the owner for many years had made no inspection to discover the condition of the piles, which would have been practicable, it is liable for the injury to the cargo on the grounds of negligence.</p> <p>Where the owners of such cargo have recovered a judgment against the charterers of a steamship from which it was being unloaded when the pier collapsed, the fact that the recovery was based on the liability of the charterers as common carriers does not prevent a recovery by them over against the owner of the pier based on negligence.</p> <p>Where a person without fault has been held legally for damages caused by the default of another, or where he has been compelled to pay money which in justice another ought to pay, he may recover the sums paid from the person whose fault caused the damage, or who ought in justice to pay.</p> <p>In such action the prior judgment recovered against the plaintiff establishes the damages sustained in case the defendant was notified and given an opportunity to defend.</p> <p>Evidence examined, and held, that the defendant, a dock owner; had, through its attorney at law, been given due notice of and opportunity to defend the prior suit.</p> <p>Notice to the general counsel of a corporation respecting a matter in which he was authorized to act is notice to the corporation.</p>

Appeal by the plaintiff, Lucy A. Carroll, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Suffolk on the 18tli day of ¡November, 1908,' upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, William J. Anderson, as administrator, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings pn the 30th day of September, 1908, Upon the decision of -the court, rendered after a trial at the Kings County Special Term, overruling the -defendant’s demurrer to the complaint. '

Appeal by the defendant, the Robert White Engineering Works, sued as Robert White Engineering Company, from a judgment of the Supreme Court in favor of the plaintiS, entered in the office of the clerk of the county of Kings on the 2oth day of May, 1908, upon' the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 25th day of May, 1908, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Benjamin Altman and another, doing business under the firm name of B. Altman & Company, from a judgment of the County Court of Nassau county, entered in the office of the clerk of said county on the 1st day of July, 1908, upon an order of said County Court entered in said clerk’s office on the same day, affirming a judgment in favor of the plaintiffs rendered by a justice of the peace of the town of Hempstead, and also from the said order of…

Appeal by the plaintiff, John P. Kraemer, from 'a judgment of the Supreme Court in favor of the defendant Bichaud H. Williams, entered in the office.of the clerk of the county of «Queens. on the. 18th day of March, 1908, upon the decision of the cjourt, rendered after a trial at the Queens County Special Term,' ¿dismissing the complaint as to said defendant. ■ Í

Appeal by the defendant, the Hoffman House, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of February, 1908, as imposes as a condition of permitting an amendment to the complaint herein the payment of only ten dollars costs.

Appeal by the defendants, John I. Sparrow and another, trading as Sparrow & Smith, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Orange on the 9tn day of November, 1908, denying the defendants’ motion to change the place of trial of the action.

- Appeal by the defendant, Osias Mailer, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 10th' day of June, 1908.

<p>Sale of stock — measure of damages — time of delivery.</p> <p>The measure of damages on the breach of a contract for the sale of corporate stock is the difference between the contract price and its market value on the day on which it was to have been delivered.</p> <p>Where a contract for the sale of stock did not set the time of delivery, that time must he taken as the date when the vendee notified the vendor to deliver the stock and draw upon him for the purchase price, if the vendor made no objection to the manner of payment.</p> <p>Where the vendee claimed a breach as of that date and threatened to begin suit, he cannot thereafter assert that the time of delivery was at a later date when the stock had greatly increased in value.</p>

Appeal by the plaintiff, William G. McCrea, from a judgment of the Supreme Court in favor of the defendant James McOlenahan, entered in the office of the clerk of the county of Westchester on the 30th day of January, 1908, upon the dismissal of the complaint by direction of the court as to the said defendant after a trial at the Westchester Trial Term.

Appeal by the claimant, Millie Cohn, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 24th day of February,. 1908, confirming the report of a referee in surplus proceedings.

Appeal by the plaintiffs, Charles B. Hald and others, from an ' order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of December, 1908, denying the plaintiffs’ motion ' to amend the summons and complaint to make the widow and heirs at law of Joseph Lawson, deceased, parties defendant in an action for the specific performance of a contract to sell real property*

Appeal by the defendant, William- Edenborn*, from a judgment of the Supreme'Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 2d day of March, 1907, upon the decision of the court rendered after a trial held by consent at the Queens and Kings County Trial Terms, a jury having been waived.

Appeal by the defendants, William Monypeny, executor and trustee, etc., and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on tine 10th day of July, 1908, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the said defendants’ demurrers to the complaint.

Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 22d day of April, 1908, upon the verdict of a jury for $2,800, and also from an order entered in said clerk’s office on the 28th day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The City of New York, from a judgment of -the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of May, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action is for damages for breach of a contract of the plaintiff with the defendant to build a sewer, by which the plaintiff was compelled to do work and furnish material not covered or required by the contract.</p>

<p>Beal property — vendor and purchaser — specific performance — conveyance by description agreed upon.</p> <p>Where a contract for the sale of lands, after describing the premises by metes and bounds, states that they are known as lots having certain numbers on a certain map, the vendor sued for specific performance will be required to state the lot numbers as part of the description in the deed.</p>

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil' Procedure.</p> <p>The question is whether the title offered by the defendant to the plaintiff is good. It comes through a sale of real property of two infants under sections 2348, et seq., of the Code of Civil Procedure, one of whom was over 14 years of age and did not join in the petition to sell.</p>

<p>Costs—when right to disbursements follows — executors and administrators — when costs not payable from estate.</p> <p>When the-Appellate Division modifies a surrogate’s decree “with costs,” the award includes necessary “ disbursements,” although it does not so state. An award of costs includes disbursements, except on appeals from orders. Costs are not payable out of an estate unless so stated in the award.</p>

Appeal by the defendant, Frederick Eberspacher, from a judgment of the Municipal Court of the city of Flew York in favor of the plaintiff, rendered on the 26th day of April, 1905, in an action for damages occasioned in consequence of the defendant’s falling through a plate glass window in front of plaintiff’s premises. •

Appeal by the defendant, Annie Kornblum, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 21st day of October, 1908, after trial without a jury.

Appeal by the plaintiff, the Cary Manufacturing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 27th day of June, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of June, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant,- Andreas C. Bosselman, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of October, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint in an action brought to prevent- the unauthorized publication of plaintiff’s portrait,

Appeal by the defendant, Walter F. Duckworth, from, an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 15th day of October, 1908.

<p>Real property — conveyance oí life estate with remainder to same person — title of grantee alienable by will or deed.</p> <p>A conveyance of lands to E. for life, with a proviso that, should the estate terminate during the lifetime.of E., remainder to go to N. for the residue of E.’s life, and further providing that on the death of E. the remainder shall go ■ to him and his heirs, vests E. with both the life estate and the remainder. - The grantee became seized of the remainder upon the delivery of the deed, his estate commencing in preesenti, though to come into possession in futuro, and such remainder, by virtue of the statute being descendible, devisable and alienable the same as an estate in possession, passes by the will or deed of the grantee. . ■</p>

Appeal by the defendant, Leopold Fve.iman, from, a judgment,of the Municipal Court of the. city of Mew York, borough of Brooklyn, in favor of the plaintiff, rendered on the,18th day of September,, 19.08. ' . ' ■ '■■■■■■

Appeal by the defendant, the Metropolitan Bridge and Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 18th day of July, 1908, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 13th day of July, 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the Coney Island and Brooklyh Bail-road Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of June, 1908, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 13th day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, the Keeseville, Ausable Chasm, and Lake Champlain Eailroad Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 10th day of January, 1908, nunc pro tunc as of the 27th day of November, 1907, upon the report of a referee appointed to hear, try and determine.

Appeal by the plaintiff, William Ranken, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the loth day of October, 1908, upon the dismissal of the complaint by direction of the court on the plaintiff’s opening upon a trial at the Rensselaer Trial Term.

<p>Huisance—cutting ice in public waters—Penal Code, section 429 — action for death of one skating into unguarded opening.</p> <p>The provisions of section 429 of the Penal Code, that a person or corporation cutting ice in public waters must surround the cuttings and openings made with fences or guards sufficient to obstruct the free passage of persons into the openings and making-it a misdemeanor to omit to do so, are mandatory and the right to cut ice is conditioned upon the observance thereof.</p> <p>Unless the provisions of section 429 of the Penal Code relating to the cutting of ice are complied with, the cutting of ice in Catskill creek, which is a public highway and a place much used for skating, constitutes a public nuisance.</p> <p>An action for causing the death of plaintiff’s son,' whó, while skating on Catskill creek, where defendant was cutting and taking ice, fell into an unguarded opening, is for damages caused by a nuisance, and while contributory negligence in,its ordinary meaning is not a defense, the plaintiff is not entitled to recover if the act of his son was voluntary and deliberate.</p>

Appeal by the plaintiff, The People of the State of Hew York, from a judgment of the Supreme Court in favor of the. defendant, entered in the office of the clerk of the county of Eensselaer on the 22d day of. October, 1908, upon the dismissal of the complaint by direction of the court upon a trial at the Eensselaer Trial Term.

<p>Appeal by Mary M. Ordway, individually and as administratrix, etc., from portions of a decree of the Surrogate’s Court of the county óf Washington, entered in said Surrogate’s Court on the 10th day of June, 1908.</p>

Appeal by the defendant,--B. William Munn, from an order of the Supreme Court, made at .the Bensselaer Special Term and entered in the office of the cleric of the county of Bensselaer on the 6th day of April, 1908, granting the plaintiff leave to serve an amended complaint and allowing twenty-five dollars costs to the defendant.

Appeal by the plaintiff, The Delaware Valley Telephone Company, from a judgment of the County Court of Broome county in favor of the defendant, entered in the office of the clerk of said county on the 5th day of June, 1908, upon an order of said County Court reversing a judgment of a justice of the peace.

<p>Appeal by the defendants, Charles Rhodes and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Clinton on the 25th day of November, 1907, upon the verdict of a jury, and also from an order bearing date the 18th day of November, 1907, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the Tillage of Saratoga Springs, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 1st day of June, 1908, upon the verdict of a jury for $1,000, and also from an order made on the 28th day of May, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal .by the plaintiffs, George G. Freer and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Schuyler on the 8th day of September, 1908, upon the decision of the court'rendered upon a trial at the Schuyler Trial Term, certain questions of fact having . been submitted to the jury.

■ Appeal by the plaintiff, Minor Wright, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 16th day of June, 1908, upon the dismissal of the complaint by direction of the court upon a trial at the Rensselaer Trial Term.

Appeal by'the defendants, The Board of Estimate and Apportionment of the City of Troy and'others, from an' order of the Supreme Oo.urt, made at the Ulster Special Term and entered in the office of the cleric of the county of Rensselaer on the 23d day of October, 1908, directing the issuance of a peremptory writ of mandamus requiring the board of estimate and apportionment of the city of Troy to fix the compensation of the relator as-prineipal of School Ho, 12, with powers of…

Appeal by the defendant, the Home Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 27th day of .August, 1908, upon the decision of the court, rendered after a trial at the Franklin Trial Term,- a jury having been waived.

. Abpeal by the defendants, John H. Moore'and-another, from a' judgment of the Supreme Court in favor of the plaintiff, entered in: the office of the clerk of the county of Warren on the 17th day of July, 1908,, Upon the decision of the court rendered after a trial at the Warren Special Term.

Appeal by the defendant, the International Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson oil the 1st day of May, 1908, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 4t-h day of May, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Vincenzo Chiavaroli, from a judgment of the Supreme Court in favor of the defendant, entered in- the office of the clerk of the county of Washington, on the 12th day of May, 1908, upon the dismissal of the complaint by direction of the court-at the close of plaintiff’s- case upon a trial at the Washington Trial Term.

Appeal by the defendants, William J. Stoneman and another, from a judgment of the -County Court of Albany county in favor of the plaintiff, entered in the'office -of the clerk of said' county on the 13th day of October, 1908, upon an order of .said County Court bearing date the 6th day of July, 1908, 'and entered in said clerk’s office, affirming a judgment of the City Court of Albany, with notice of an intention to bring up for review upon such appeal the said order of July…

Appeal by 'the defendant, The New York, Ontario and Western Bail way Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 22d day of April, 1907, upon the decision of the court rendered .after a trial at the Sullivan Trial Term, certain questions of fact having been submitted to the jury.

Appeal by the plaintiff, Henry Smith, from'an order of the County Court of Albany county, entered, in the office of the clerk of said county on the 28th day of April, 1908, denying the plaintiff’s motion to transfer the cause from the trial calendar to the law calendar of the Albany County Court.

Appeal by the defendant, Marshall J. Oorbett, from an order of the County Court of Broome county, entered in the office of the clerk of said county on the 21st day of July, 1908, reversing a judgment of the City Court of Binghamton in favor of the defendant, and granting a new trial.

Appeal by the plaintiff,. George McCarthy, fro a judgment of the County Court of the county of Franklin, entered in the office of the clerk of said county on the 22d day of September^, 1908, affirming a judgment of a Justice’s Court in favor of the defendant.

Appeal by the defendant, Peter R. Pingar, as administrator, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 26th day of June, 1908, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on tlie 24tli day of July, 1908, denying the dtefend'ant’s motion for-a nexv trial made upon the minutes.

Appeal by the petitioner, the Deposit Electric Company, from an order of the Supreme Court, made at the Bi’oome Special Term and entered in the office of the clerk of the county of Delaware on the 2d day of September, 1908, modifying an order made by the Forest, Fish and Game Commissioner, entered on the 6th day of August, 1906, with notice of an intention to bring up for review upon such appeal the said order of August 6, 1906.

Appeal by Edgar T. Chapman, Jr., from an order of the Supreme Court, made at the Bensselaer Special Term and entered in the office of the cleric of the county of Bensselaer on the 15th day of April, 1908. The order appealed from confirms the report of a referee, and directs the appellant to pay over to the petitioner certain moneys in his hands which she claims he received while acting as her attorney.

Appeal by the defendant, George W. Hubbs, from a judgment of the County Court of Jefferson county in favor of the plaintiff, entered- in the office of the clerk of the county of Jefferson on the 27tli day of December, 1907, upon the decision, of the court, and also from an order bearing date the 27th day of December, 1907, and entered in said clerk’s office, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, The Empire Circuit Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 29th day of October, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of October, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, New York and New Jersey Telephone Company,'from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 21st day of October, 1908, upon the decision of the court, rendered after a trial at the Oneida Special Term, overruling the defendant’s demurrer to the amended complaint. » The action was commenced on the 26th day of June, 1907, to recover damages resulting from…

Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 2d day of July, 1908, upon the verdict of a jury for $8,500, and also from an order entered in said clerk’s office on the 25th day of September, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Motion by the defendant, the Niagara, Lockport and Ontario Power Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in t-lie first instance, the verdict of a jury in favor of the plaintiff having been rendered bn the 23d day of March, 1908, after a trial at,the Monroe Trial Term.

■ Appeal by the plaintiff, John H. Foley, from a judgment of the County Court of Oneida county, entered in the office of the clerk of said court on the 9th day of November, 1908, upon the report of ; a. referee.

Appeal by the defendants, Maynard 1ST. Clement, as State- Commissioner, etc., and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of Niagara on the 2d day of July, 1908^ upon the decision of the court rendered after a trial at the Niagara Special Term.

Appeal by the plaintiff, Michael Konowalski, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 28th day of October, 1908, upon the decision of the court, rendered after a trial at the Erie Special Term, dismissing the complaint upon the merits.

<p>Appeal by the defendant, Leonard Story, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Seneca on the 15th day of May, 1907, upon the decision of the court rendered after a trial at the Seneca Trial Term, a jury having been waived.</p>

<p>Appeal by the defendant,. the Auburn and Syracuse Electric Eai’lroad Company, from a judgment of the. County Court of Cayuga county in favor of the plaintiff, entered in the office of the clerk of said county on the 16th day of July, 1908,, upon the verdict of á jury for $1,000, and also from an order entered in said clerk’s office on the 23d day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, the American Bridge Company of hiew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 6th day of June, 1907, upon the verdict of á jury for $10,000, and also from an order entered in said clerk’s office on the 3d day of July, 1908, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Municipal corporations—franchise of electric company construed— court — constitutionality of proposed act not determined — costs.</p> <p>A resolution granting a .municipal franchise to an electric power company provided that the grantee should submit its plans and specifications to the municipal authorities and obtain an approval thereof; that the structures erected by the grantee should be sufficient to afford facilities for at least one other company, such additional space not to be used by the grantee for ten years after the acceptance of the grant, during which period the city might use the additional space “for any public purpose from which it should not derive revenue ” without compensation, and that such use if commenced by the city might continue for the full term of the grant; that the city might also use the additional space during the ten years for the purpose of furnishing light, heat and power for other than public purposes, or authorize other companies to use it, but in such case the city or the company should make compensation; that if the city or another company should commence using the additional space duiv ing the ten years such use might be continued during the whole period of the grant upon making compensation; that if after the end of ten years the additional space should remain unused and neither the city nor another company should have become entitled to use the same then the grantee might use the space for its own purpose.</p> <p>• On a submission of a controversy upon an agreed statement of facts to obtain a construction of said ordinance,</p> <p>Held, that structures erected by the grantee or its assignee not covered by the original plan filed and approved by the municipal authorities should be con- . trolled by the provisions of any new franchise or extension of the old franchise that might be granted;</p> <p>• That the structures covered by the original plan filed were to be completed within ten years and that the -grantee could not deprive the city of its right to use the additional space, or to give that right to another company, by delaying the work beyond the ten-year period, and hence, if the structures were not completed within the ten-year period, the city had a reasonable time after the completion to occupy the additional space and to preserve its rights therein;</p> <p>That the city had no right to use the additional space for the purpose of transmitting electricity to pump water paid for by private persons without compensating' the grantee, as the city received “revenue” for water so furnished;</p> <p>That the court will not determine whether the city would be entitled to-use the additional space for transmitting electricity for sale to individuals should such power be granted to it by the Legislature, nor will it determine the constitutionality of such possible legislation. This, because courts will not instruct the Legislature as.to its constitutional powers in advance of legislation;</p> <p>-That the city bad no right to use the additional space for the purpose of transmitting electrical power for private use or to drive pumps or to light the municipal water bureau station without making compensation to the grantee;</p> <p>That as some of the questions are resolved in favor of the plaintiff and some in favor of the defendant, no costs should be allowed.</p>

<p>Appeal by the defendant, the Lehigh Valley Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 24th day of April, 1908, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 23d day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Alexander L. Gillig, from a judgment of the Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 27th day of July, 1908, upon the report of a referee.</p>

Application by the directors of the Buffalo Frontier Terminal Bailroad Company, under section 59 of the Bailroad Law (Laws of 1890, chap. 565, added by Laws of 1892, chap. 676, and amd. by Laws of 1895, chap. 545), for an order directing the- Public Service Commission of the second district of the State of New York to issue to the petitioner a certificate of public convenience and a necessity.

<p>Pleading —demurrer to reply — sufficiency of counterclaim determined — marine insurance — contract for release of stranded vessel construed — counterclaims available to insurer— obligations of contractor to insured — allegations not stating defense to counterclaim—waiver.</p> <p>Where a defendant demurs to a reply the plaintiff may attack the sufficiency of counterclaims to which the reply is made.</p> <p>Where under a policy of marine insurance the owner of the vessel has the exclusive right to release it if stranded and hold the insurer for the cost, but the owner waives that right and consents that the insurer shall release the vessel, and the latter thereupon contracted with the plaintiffs assignor, who knew oí the agreement between the owner and the insurer, to do and complete the work by a specific date, but the contractor failed in timely performance so that the owner was damaged by being deprived of the use of the vessel beyond the period set for the release, the insurer when sued by the contractor’s assignor for the contract price may counterclaim the amount for which it became liable to the owner owing to the contractor’s default.</p> <p>The insurer’s right of action on the counterclaim is complete when its liability to the owner accrues, although it has not yet paid to the owner. This because the contract to release the vessel Was not merely one of indemnity against loss or damage, but was a contract to do a particular thing for the purpose of protecting the insurer against liability.</p> <p>So, too, it is a good counterclaim against the contractor’s assignor to allege in substance that the clause guaranteeing the release of the vessel by a specific date was put into the contract for the express benefit of the owner to the knowledge of the contractor, and that the owner in reliance upon the guaranty waived its right to release the vessel and permitted the insurer to do it and to make the contract. This, because under the circumstances the Owner itself would be entitled to recover the damages caused by the contractor’s default, and should the insurer recover against the contractor it would be liable over to the owner as trustee.</p> <p>The relation of the owner to the agreement made between the insurer and the contractor maybe shown by parol evidence dehors the writing. A trust or agency can always be shown to exist outside of the contract itself so as to protect the outside party, principal or cestui que trust.</p> <p>Where the sufficiency of a counterclaim is attacked, the allegations must be taken to be true.</p> <p>It is no reply to the counterclaims aforesaid to allege that the insurer after the commencement of the action and before service of answer agreed with the owner that it should appear and assume charge of the defense of this and any other action on the contract at its -own expense, with power to set up any defense or counterclaim and that the insurer would pay any judgment recovered against it up to, but not exceeding, a Certain sum, and that if the judgment was'less than that sum, to settle the judgment and pay the excess to the owner, with- a further ‘proviso that the insurer’s liability in no case was to exceed the sum stated, the owner to give security to protect the insurer against any other liability in the suits and to dismiss suits brought by it against the defendant and against the contractor and to enforce whatever claims it had against the defendant founded upon their operations in releasing’the vessel or on the contract, except so far as they could be worked out in the action. Such reply does not show a waiver by the owner of all the claims against the insurer for damages caused by the contractor’s default, for the agreement merely provided for the enforcement of such claims through the medium of the action and gave the owner the benefit thereof.</p>

Appeal by the defendant, the Rochester, Syracuse and Eastern Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 9th day of September, 190.8, upon the decision of the . court, rendered after a trial at the Monroe Special Term.

Appeal by the defendant, The City of Buffalo, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the' office of the clerk of the county of Erie on the 20th day of October, 1908, upon the decision of the court, rendered after a trial at the Erie Special Term, overruling the defendant’s demurrer to the complaint.

Appeal by the plaintiff, Biifus If. Choate, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the County of Erie on the 3d day of March, 1908, upon the verdict of a jury rendered by direction of the court, arid' also from an order entered in said clerk’s office on the same day.-denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Limitation of action — sale after balancing mutual account — trial — decision of questions of fact after motions for direction of verdict — appeal — direction of verdict contrary to evidence.</p> <p>Where, after striking a balance of a running mutual account so as to show a sum due the plaintiff, the defendant sold other goods to the plaintiff, which were entered in the'same books, to be credited on the balance due, there was a payment on account, and the Statute of Limitations on the whole balance begins to run from the date thereof. This is true, even though the new sale is not regarded as a continuation of the former account.</p> <p>Where both parties move for the direction of a verdict, the trial judge must determine the questions of fact.</p> <p>A verdict directed by the court will be set aside where it is contrary to the evidence.</p>

<p>Sale — breach of warranty — erroneous direction of verdict.</p> <p>Action to recover the purchase price of goods sold and delivered. The defendant set up a counterclaim for breach of warranty, contending that the damages sustained by him equalled the purchase price. On all the evidence, held, that it was error to direct a verdict for the defendant.</p>

<p>Master and servant — negligence — injury by bursting pulley.</p> <p>Action by a servant against his master to recover for personal injuries. The plaintiff, in charge of a stationary engine, was injured by the bursting of a wobden pulley which began to revolve át a high rate of speed, owing to .the fact that the governor of the engine ceased to operate. On all the evidence, ■ held, that while the jury were warranted in finding the plaintiff free from contributory negligence, the negligence of the defendant was not sufficiently established.</p> <p>Williams, J., dissented.</p>

<p>Municipal corporation — river improvements in city of Buffalo — charter construed—validity of contract let before confirmation of assessment."</p> <p>Although section 408 of the charter of the city of Buffalo, relating to municipal improvements in the Buffalo river, provides that the city shall not enter into a contract for an improvement to cost over $500 until the assessment therefor has been confirmed and delivered to the treasurer, the assessors do not lose jurisdiction because contracts exceeding $500 were let before the confirmation of the assessment. On certiorari to -review an assessment so made the judgment should direct the assessment to be returned to the common council with instructions to annul the same and order a new assessment.</p> <p>Moreover, as chapter 568 of the Laws of 1903, as amended by chapter 665 of the Laws of 1906,.provides that it shall be lawful for the city to issue bonds to a certain amount to defray the expenses of improving the Buffalo river, one-half to be general fund bonds and the other half local assessment bonds, contracts let and paid for by the proceeds of the bonds are not invalid although the contracts were let prior to the confirmation of an assessment as required by section 408 of the charter. This, because section 408 is inapplicable owing to the fact that the Legislature has directed the raising of money for such improvement by bonds rather than by taxation, and it is immaterial that one-half of the amount is ultimately to be raised by taxation of persons benefited and paid into the general fund of the city.</p> <p>McLennan, P. J., dissented; Williams, J., dissented in part, with opinion.</p>

<p>Appeal by the plaintiff, The National Exchange Bank of Clayton, N. Y., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Jefferson on the 2d day of July, 1908, upon the decision of the court, rendered after a trial at the Jefferson Special Term, dismissing the complaint.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 17th day of June, 1908, directed to Orris Newell and others, iiidividually and as members of the town hoard of the town of Napoli, commanding them to certify'and return to the office of the clerk of the county of Cattaraugus all and singular their proceedings had in discontinuing a certain highway in said town.</p>

Appeal by the defendant, the C. W. Miller Transfer Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 8th day of April, 1908, upon the decision of the court, rendered after a trial at the Erie Special Term, directing the foreclosure and sale of the premises described in the complaint.

Appeal By the defendants, St. Mary’s Roman Catholic Church Society of Batavia, Mew York, and another,-from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county -of Genesee on the' -9-th day of- -January, ■ 1909, upon the report of a referee. •

<p>Application to, resettle an order of the Appellate Division reversing a determination of the Appellate Term and affirming a judgment of the Municipal Court.</p>

Appeal by the defendant, The J. K. Armsby Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 3d day of April, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the loth day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Horace B. Hooker and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Mew York on the 17th day of February, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of February, 1908, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Edward Polak, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 19tli day of October, 1906, striking out paragraph 7 of the complaint as irrelevant.

Appeal by the defendant, the Morning Telegraph Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of December, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.

Appeal by the plaintiff, Columbus Dry Goods Company, from a judgment of- the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 20tli day of Hovember, 1908, upon the dismissal of the complaint by direction of the court at the opening of the case upon a trial at the Hew York Trial Term.

Appeal by the defendant, Henry Clay Pierce, from a judgment of the Supreme Court in favor of the plaintiffs^ entered in the office of the clerk of the county of Hew York on the 25th day of June, 1908, upon the verdict of a jury, and also from an order entered in said cleric’s office on the 24th day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Henry Oppenheimer, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 25th day of June, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint.

Appeal by the plaintiff, David McCallum, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 21st day of January, 1908, upon the verdict of a jury, rendered by direction of the court, and also from an order entered in said clerk’s office on the lltli day of February, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Harriet H. Kilmer, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 14th day of October, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of October, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, John Mulcahy, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 3d day of February, 1909, denying the defendant’s motion to vacate an ex parte order directing that an execution issue against the defendant’s salary.</p>

<p>Appeal by the plaintiff, Fernando 0. Candee, Jr., from an interlocutory judgment of the Supreme Court in favor of the defendant Hyman D. Baker, entered in the office of the clerk of the county of Hew York on the 18th day of December, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, sustaining the said defendant’s demurrer to the complaint.</p>

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

<p>Municipal corporations — change of grades in twenty-third and twenty-fourth wards, city of Mew York, pursuant to chapter 646 of the Daws of 1890 — when grade damage commission has no jurisdiction.</p> <p>The grade damage commission of the city of Hew York, acting under the authority of chapter 587 of the Laws of 1893, as amended hy chapter 567 of the Laws of 1894, which authorized an award of damages caused by changes in grade in the twenty-third and twenty-fourth wards, when made under certain specified statutes, has no jurisdiction to award damages on account of the grades of Westchester and St. Ann's avenues, as previously fixed by the commissioner of street improvements in the twenty-third and twenty fourth wards, and shown on a map filed and certified by him on March 21, 1894, pursuant to the authority conferred by chapter 545 of the Laws of 1890. This, because said chapter 567 of the Laws of 1894 expressly enumerated the acts affecting changes of grade for which the damage commissioner could make awards, and the said act of 1890, under which the commissioner of street improvements acted, was excluded from the enumeration.</p> <p>Although chapter 545 of the Laws of 1890, creating the commissioner of street improvement for the twenty-third and twenty-fourth wards, transferred to him the powers and jurisdiction of the commissioners of the park department, said map filed by the street commissioner on March 21, 1894, pursuant to said act of 1890, cannot be deemed to he a map filed by the park commission under chapter 721 of the Laws of 1837, so as to bring the change of grade within the jurisdiction of the grade damage commission, which was authorized to award, damages for changes in grade made under the latter act.</p> <p>The grade damage commission does ndt acquire jurisdiction to award damages for the grades fixed by the street improvement commissioner on account of the fact that' the map filed by him shows the same grades as those shown on a large working drawing made by the park department, as the latter map was never filed. And, moreover, the plan which was actually filed showed that there was no change of grade in said avenues.</p>

<p>' Practice — action against joint tort feasors — dismissal of complaint as against one defendant and subsequent mistrial — severance of action and judgment of nonsuit.</p> <p>Where the complaint in an action against several joint tort feasors has been dismissed upon trial as to one of them who answered separately, and the trial proceeding against the other defendants, was finally declared to be a mistrial because of the non-appearance of a juror, the defendant as to rvhom the complaint was dismissed is entitled to a severance of the action and to the entry of a judgment in his favor, with costs, as if sued in a separate action.</p> <p>Where through inadvertence the dismissal of the complaint was stated to be “ upon the merits,” the words will be stricken from the judgment.</p> <p>Respective rights of parties, where plaintiff can hold several defendants for tort, stated per Clarke, J.</p>

<p>Appeal by George W. Angelí from part of a decree of the Surrogate’s Court of the county of New York, entered in said court on the 1st day of September, 1908, settling the account of the substituted trustee herein and directing payment to the executors of Caroline E. Perkins, deceased, of certain items held to be income.</p>

<p>Attorney disbarred — blackmail — compounding felony — payment to guardian ad litem without filing bond.</p> <p>Proceeding to disbar an attorney at law. The respondent was retained to bring a civil action to recover damages for a criminal assault alleged to have been committed upon a female fifteen years of age. He had the plaintiff’s sister appointed guardian ad litem and entered into a contract with the guardian whereby he was to receive fifty per cent of any recovery. Thereafter he caused to be served upon the defendant a summons from a Magistrate’s Court citing him to appear and answer to a charge of criminal assault. On the return day the defendant appeared by attorney who denounced the criminal proceeding as attempted blackmail, and the respondent thereupon entered into negotiations with the attorney for a settlement of the civil action, service of the summons being accepted by the attorney. After various negotiations defendant through his attorney paid the respondent §2,500 together with §500 counsel fee, upon the respondent’s promise that both the criminal and civil cases should be dropped without subjecting- the defendant to further notoriety. Thereafter, without permission of the court, he procured a release of the civil action from the guardian ad litem and paid her half of the settlement without taking steps to effect the execution of a bond as required by section 474 of the Code of Civil Procedure. On all the evidence, held, that the respondent should be disbarred.</p> <p>While the service of the summons obtained from the police magistrate was not in legal effect the commencement of a criminal prosecution, it was used by the respondent as a means of extortion so as to make him guilty of blackmail. He was also guilty of the crime of compounding a felony.</p> <p>In addition to the crimes aforesaid respondent was guilty of serious professional misconduct in paying over to the plaintiff’s guardian ad litem, who was not general guardian, a portion of the settlement without requiring her to give a bond, and without obtaining an order permitting her to compromise the action.</p> <p>Application to disbar an attorney.</p>

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

<p>Appeal by the defendant, the New York City Interborough Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of April, 1908, upon the verdict of a jury for $25,000, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Sale — when foreign corporation not doing business here.</p> <p>A foreign corporation having no property or office in this State by entering into a contract of sale of paving stones quarried in the foreign State to be delivered from time to time over a period of ten months is not doing business here within the meaning of section 15 of the General Corporation Law, where such sale is the only business ever transacted in this State.</p> <p>Although some of the deliveries were made pending the negotiations for the contract and although the goods were not to be delivered at one time, there is not such continuity of business as to enable the purchaser sued for the contract price to defend upon the ground that the seller was not licensed to do business here.</p>

<p>Beal property — escheat — presumption as to heirs — vendor and purchaser—when title to lands released from escheat not marketable.</p> <p>There is a presumption that a decedent leaves heirs, but not necessarily a presumption that such heirs are competent to inherit, as they may be aliens incompetent under the statute.</p> <p>The presumption that there are heirs is not conclusive, and may be overcome by circumstantial evidence, or by a great lapse of time with proof that no heir appeared to claim the property.</p> <p>A vendor who bases his title on a claim that the lands had escheated to the-State and been released to his predecessor in title, the decedent's husband, cannot compel his vendee to perform specifically without showing by satisfactory evidence that the original owner left no heirs competent to take by descent, where twenty years have not elapsed since the death of the original owner.</p> <p>Such title is not rendered marketable because one claiming to be an adopted daughter of the original owner instituted proceedings in the Surrogate’s Court for the probate of her heirship, alleging that if the decedent left other heirs they were unknown, and a decree establishing the heirship of the adopted daughter was entered after the publication of citations against unknown heirs, if the decedent’s husband through whom the vendor claimed title was not a party to that proceeding, and the judgment in a subsequent action of ejectment by the adopted daughter against the husband was reversed upon the ground that the proceedings in the probate of heirship were not binding upon him and that action is still pending.</p> <p>Although the probate of heirship might be binding between the adopted daughter and unknown heirs, the decedent’s husband, or one claiming under him, derived no right thereunder.</p>

<p>Appeal by the defendant, The Department of Health of the City of Hew York, from an order of the Supreme Court; made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 5th day of February, 1909, granting a peremptory writ of mandamus requiring the defendant “to change and correct the records” with respect to the name of the relators’ son.</p>

<p>Municipal corporations—street opening, city of Mew York — chapter 1006 of the Laws of 1895 construed — damages of abutting owners — dedication to and acceptance of street by public — power of Legislature to close street prior to award —claimant must show title — rights of owners whose access is cut off— award of damages where claimant owns fee—right to use old streets until new streets opened.</p> <p>By chapter 1006 of the Laws of 1895, governing the closing of streets and thoroughfares in cities of more than 1,250,000 inhabitants, the Legislature intended to provide not only for the destruction of public easements, but of private easements in the discontinued streets.</p> <p>Under section 2 of chapter 1006 of the Laws of 1895, streets shown on the map filed are regarded as being laid out by the local authorities filing the map regardless of whether at that time they were public streets and are merely continued on the new plan or whether they were new streets which had not been dedicated to or acquired by the city for public purposes. Hence, although Jerome avenue had already been opened before the filing of such map, it was continued as a public street thereby and former existing intersecting streets not continued on the new plan become closed upon the filing thereof. The owners are entitled to damages and are not required to wait until the new block containing the closed streets is surrounded on the other three sides by streets yet to he acquired by the city and physically opened for public purposes.</p> <p>The Legislature may close streets before new streets are opened giving access to property abutting on the discontinued streets and leave the property owner to his remedy for compensation as prescribed in chapter 1006 of the Laws of 1895.</p> <p>Evidence examined, and held, that portions of Seventh and Eighth avenues and Walnut street, formerly within the village of lit. Eden in the county of Westchester were dedicated to the public by former owners and were subsequently accepted as public highways by the city of New York prior to the 2d day of November, 1895, when a map laying out streets in that section was filed under chapter 1006 of the Laws of 1895.</p> <p>The dedication of a street by the owner and an acceptance hv the municipal authorities does not vest the fee in the city, and hence the fact that the city is subsequently given authority to acquire the fee shown on prior maps does not militate against the dedication and acceptance of easements for public purposes.</p> <p>Although it appears that portions of streets closed under chapter 1006 of the Laws of 1895 had already vested in the city for public purposes in another proceeding, and that awards had then been made to property owners injured, the commissioners in assessing damages on closing said streets should assume that the former awards were made upon a proper basis and are not at liberty to speculate as to what, if any, additional compensation the owners received in the other proceedings over and above that to which they were legally entitled.</p> <p>By virtue of sections 4 and 14 of chapter 1006 of the Laws of 1895 the right of landowners to damages accrues the moment streets become legally closed under said act.</p> <p>Ordinarily where lands or easements are acquired for public purposes the private title or easements are not extinguished until just compensation has been made; but where the right of eminent domain is exercised by the State or a political division thereof, the Legislature may provide for the extinguishment of title and easements at a fixed time in advance of compensation if the owner he given an adequate remedy to recover his damages.</p> <p>Where streets are closed under a statute by which the title vests in a municipality prior to an award of damages, the right of claimants must be determined as of the time when the street became legally closed.</p> <p>In such case the damages consist in the depreciation in the value of lands by the closing of the street and the termination of the claimant’s right to have them maintained as public streets, and it is immaterial that such owners did not inclose the discontinued streets, as authorized by the statute, but continued to use it, as such user was merely by sufferance and not by right.</p> <p>One claiming damages for the closing of a street is under the burden of showing both his title and his damage. If he fail to do so an award will be vacated.</p> <p>Where a city raises an objection that a claimant is not legally entitled to receive any award and that the evidence is insufficient to justify an award, and that the same was made on an erroneous theory, there is no waiver of the rule that the claimant must prove both his title and his damage.</p> <p>Where streets are closed under chapter 1006 of the Laws of 1895, commissioners may make an award in excess of the amount stated in the claim filed by the owner. This, because the object of filing a claim is not to procure a settlement thereof, but to institute proceedings for the ascertainment of the damages sustained, and it is not incumbent upon the claimant to state the amount of his damage with accuracy.</p> <p>As said act of 1895 provides that discontinued streets may be inclosed by the owners of the fee, there was an intention to terminate all public and private easements in the portion of the streets closed, not merely to terminate those easements as to property owners within the same block and leave them outstanding as to other owners. Hence, where, the outlet of a street which was formerly a eul de sao became legally closed, abutting owners whose outlet was thus cut off are entitled to compensation.</p> <p>The only jurisdiction to make an award on a street closing under chapter 1006 of the Laws of 1895 is by an order obtained pursuant to section 14 of that act.</p> <p>When there is no order on record authorizing the commissioners to ascertain the compensation of a certain claimant, they are not entitled to make him an award.</p> <p>Evidence examined, and held, that a certain street formerly dedicated to the public had not been accepted by the municipal authorities.</p> <p>It seems, that even if such street had become a public street, if the former owner retained title to the fee at the time it became closed in a proceeding under the act of 1895, his damages should be assessed upon the basis of the extinguishment of the public easement only, for owning the fee, the claimant retained the same right of ingress and egress and lost merely the benefit of having his property fronting upon a public street to be maintained ns such.</p> <p>In a street closing under chapter 1006 of the Laws of 1895, old streets do not. become closed until at least one street bounding the proposed block becomes physically opened for public use. Hence, although a new street bounding one side of the proposed block has been laid out but not physically'opened, claims for damages are premature, as the right to use the streets to be discontinued still exists.</p> <p>Ingraham, J., dissented, in part, with opinion.</p>

<p>Appeal by the plaintiff, Richard Korkemas, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of ¡New York on the 24th day of ¡November, 1908, affirming a judgment of the City Court of the city of ¡New York in favor of the defendant, entéred in the office of the clerk of said court on the 26th day of June, 1908, upon the dismissal of</p> <p>the complaint at the close of the case, and also (as stated in the notice of appeal) from an order on the remittitur of said Appellate Term, entered in the office of the clerk of said City Court on the 25th day of November, 1908, and from the judgment of affirmance entered thereon on the 27th day of November, 1908.</p>

<p>Corporation — party — suit to remove directors — power of court of equity to restrain waste by directors and to appoint receivers — pleading — allegations of evidence — striking out irrelevant matter.</p> <p>The suspension or removal of directors of a corporation can be had only in an action brought by the Attorney-General under sections 1781, 1782, 1811 of the Code of Civil Procedure. But a court of equity at the suit of a stockholder can enjoin threatened acts of mismanagement or waste, or appoint a receiver of the corporate property until a new election of directors if it satisfactorily appear that the directors are acting fraudulently or in bad. faith or in their own interests contrary to the interests of the corporation, and that the relief is necessary to protect stockholders in the interim.</p> <p>However, the appointment of a receiver for such purpose, as distinguished from the receiver of a corporation itself in a proceeding for dissolution, is justified only in an extreme case satisfactorily established.</p> <p>A complaint setting forth the evidence does not comply with the requirement that a pleading shall contain a plain and concise statement of the facts.</p> <p>Where the same sentence contains both evidence and material allegations which cannot be separated, the entire allegation will be stricken out with leave to amend.</p> <p>A motion to strike out irrelevant matter is not in the nature of a demurrer so as to call for an adjudication as to the sufficiency of the pleading. But the court will examine the pleading in order to discover the nature of the cause of action or defense so that it may be determined whether certain allegations are irrelevant.</p> <p>Suit by stockholders in behalf of their corporation to obtain an accounting by directors, etc. Complaint examined and various immaterial and irrelevant allegations stricken out.</p>

<p>Pleading — action to set aside conveyance for fraud and undue influence — motion to strike out irrelevant matter.</p> <p>In a suit against a corporation and its directors to set aside a conveyance alleged to have been procured from the grantor, an aged woman, by undue influence and duress, an allegation that the conveyance was procured for no legitimate purpose but was part of an unlawful conspiracy between the individual defendants to obtain ultimate and exclusive control of the corporation, and to secure to it valuable property in fraud of the plaintiffs’ right and for the purpose of depriving them of their rights as stockholders, should not be stricken out. This, because although such allegations are not relevant to the issue as to whether the conveyance was procured by fraud, it may appear upon the trial that the acts tending to show fraud were committed by one defendant only, and his acts may have been done in the execution of a conspiracy with the others, and, hence, the allegation of the conspirac3r is proper.</p> <p>So, too, allegations that after the transfer the grantor was paid the rent of the property and that the insurance remained in her name should not be stricken out, as they tend to show that the grantor did not understand the nature of the conveyance; that the transfer was concealed, and tend to show fraud or duress.</p> <p>But allegations stating the residence of the plaintiffs and that they were not advised of the transfer and similar matters of evidence should be stricken out.</p> <p>So, too, an allegation that a legatee under the will of the grantor elected to surrender certain shares of the defendant’s stock and take a legacy should be stricken out where the legatee is not a party to the suit and the facts have no bearing on the cause alleged.</p> <p>So, too, when no answer has been served, allegations anticipating a defense of estoppel should be stricken out. This, because that issue is not yet raised and if it were raised plaintiffs could prove facts showing that they were not estopped without pleading that fact and without a reply.</p> <p>An allegation that after the conveyance the defendants induced the grantor to transfer certain shares of stock should be stricken out, even though it was done pursuant to a conspiracy to obtaina controlling interest in the corporation.</p> <p>In such action allegations that the individual defendants transferred to the plaintiffs the same proportion of stock procured by them from the grantor hy fraud and duress which the plaintiffs would have received under the will of the grantor and that they have not accepted the transfer .of the stock and stand ready to return it are irrelevant and should be stricken out.</p>

<p>Appeal by the defendant, James B. Haggin, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Hew York on the 20th day of January, 1909, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the said defendant’s demurrer to the complaint.</p>

<p>Appeals by the defendant, Siegel-Cooper Company, from judgments of the Supreme Court, entered in the office of the clerk of the county of New York on the 5tli day of November, 1908, upon the verdict of a jury for $8,000, reduced by stipulation to $5,000, in favor of Ethel Frahm, and upon a verdict for $2,000 in favor of Stephen Frahm, and also from respective orders entered in said clerk’s office on the 2d day of November, 1908, and the 22d day of November, 1908, respectively, denying the defendant’s motions for a new trial.</p>

<p>Beal property—deed — fee of highway — when conveyed.</p> <p>The soil of a highway is presumed to belong to the adjoining owners and one owning land bounded on a highway is prima, facie the owner to the center thereof, subject to the public easement.</p> <p>Where the description in a deed identifies the property sold as lots shown on a map, which also shows abutting streets, the land conveyed will be presumed to extend to the center of the streets whether or no they had actually been opened at the time of the conveyance.</p> <p>Where a deed conveys certain lots by reference to a map and describes the boundary as beginning at the corner of certain streets shown thereon and running “ along ” the streets, the grantee takes to the center of the streets.</p>

<p>Appeal by the defendant, John McCarthy, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 31st day of October, 1908, upon the decision of the court rendered after a trial at the Hew York Special Term.</p>

Appeal by the defendant, the Franklin Savings Bank in the City of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 15th day of December, 1908, upon the report of a referee appointed to hear, try and determine the issues.

<p>New York city — theatrical performance — violation of Sunday law — revocation of license — practice — appeal — order affecting substantial right.</p> <p>Section 1481 'of the Greater New York charter (Laws of 1897, chap. 878) prohibited certain theatrical performances on Sunday and provided that any such performance should of itself forfeit and annul the theater license. Section 1476, which was in the same title as section 1481, provided that any license n might be annulled by any judge of a court of record upon proof of the violation of any of the provisions of that title. The revision of the charter, made by Laws of 1901, chapter 466, provided that all sections of the charter of 1897 relating to the licensing of public amusements should continue in force until regulated by ordinance and that upon the passing of any ordinance regulating the matters provided for in any of the sections such section should cease to have any force or effect. In 1907 an ordinance was passed regulating the matters provided for in section 1481. This ordinance prohibited theatrical performances on Sunday with certain exceptions, and provided that any person violating the provisions of said section should be stfbject to a penalty of §500 to be recovered by the corporation counsel, and on the recovery of a judgment for the penalty the license obtained for the theater should be of itself annulled.</p> <p>Held, that' section 1481 was repealed by the passage of the ordinance; that the ordinance not having been inserted in the place of said section, the provisions of section 1476 no longer apply to violations of the Sunday law, and that the only way to revoke a theater license for a violation of such ordinance is by obtaining a judgment for the penalty prescribed.</p> <p>Where in a proceeding to revoke a theater license for a violation of the Sunday, law a judge, acting under section 1476 providing that the judge shall hear the proofs in the case and determine the same summarily and that no appeal can be taken from his determination, appoints a referee to take proofs, the order of reference is appealable, for it affects substantial rights of the party. On such appeal the whole question is before the court.</p>

<p>Landlord and tenant — oral lease — intention to execute written lease — insufficiency of parol agreement.</p> <p>The rule that where a tenancy can lawfully he created by parol and the parties have agreed upon all the terms, nothing being left to be done except to reduce them to writing, the letting will be deemed complete although the written lease is never executed, is applied with caution.</p> <p>Where in a conversation between a tenant and the landlord’s agent as to the execution of a new lease, the term, rent and subject of the lease were settled, but there was no agreement as to when and how the rent should be paid or what covenants and conditions should be incorporated in the lease, no complete and enforcible lease in prcesenti was made.</p> <p>The fact that the agent told the tenant to sign a lease, already sent by the landlord, but which the tenant claims he never received, did not amount to an agreement to abide by the terms of that instrument, nor does the fact that at the time the tenant had a written lease of the premises raise a presumption that the new lease was to be in the same form.</p> <p>Where the question as to the making of a lease is one of intent, the fact that the parties intended to have a written agreement is strong evidence that the oral agreement was not intended to be binding,</p> <p>Clarke, J., dissented.</p>

<p>Landlord and tenant — lease — injunction against maintenance of signs —uses to which premises may he put.</p> <p>If a landlord wishes to restrict his tenant in the use of the property he must show an express covenant in the lease preventing the use to which he objects.</p> <p>Where a tenant holds under a lease providing that all alterations or changes, except certain ones specified, shall be subject to the approval of the landlord, but containing no restrictions as to the use to which the premises may be put, the maintenance oí advertising signs on the roo£ of the building by the tenant cannot be enj oined, for they are neither alterations nor changes within the meaning of the lease.</p> <p>In the absence of any covenant the use of a roof for advertising purposes is not waste as between landlord and tenant.</p>

Appeal by the defendants, Jonas Weil and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 29th day of October, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of October, 1907, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the petitioners, Oscar B. Bergstrom and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 8tli day of February, 1909, denying a motion to compel A. Livingston Horman, an attorney, to deliver over certain papers.

<p>See head note in Matter of Bergstrom, & Bo., ante, p. 791.</p>

Appeal by the plaintiff, Emil Schweinburg, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of YTew York on the 16th day of March, 1909, vacating an order for the examination of the defendant before trial.

Appeal by the plaintiff, Marie L. Jackson, and by Merle I. St. John, her attorney, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 28th day of January, 1909, directing the attorney to surrender certain leases and assignments.

<p>Judgment — opening of default — practice.</p> <p>Where judgment in an action on a contract has been taken by default after an inquest and three motions by the defendant to open the default have been denied, the last without leave to renew, a fourth motion for the same relief made through different attorneys and in reliance upon grounds not foreshadowed in the verified answer will not be granted merely because the illegality of the principal contract is asserted, where it appears by defendant’s own affidavit that he is pariiceps criminis.</p>

Appeal by the defendant, Louis Stein, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 25th day of January, 1909, denying the defendant’s motion for a bill of particulars.

<p>Appeal by the plaintiff, Mary H. Alexander, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 3d day of J une, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the New York Trial Term.</p>

Appeal by the defendants, Flavius Packer and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 13th day of January, 1909, upon the decision of the court rendered after a trial at the Hew York S23ecial Term overruling the defendants’ demurrer to the complaint.

<p>Mortgage — discharge of record — section 270a, Beal Property Law, construed — when production of mortgage dispensed with.</p> <p>Section 270a of the Beal Property Law, providing that in counties embraced in cities of the first class, mortgages shall not be discharged of record unless in addition to the satisfaction piece the original mortgage be presented to the recording officer, or a certified copy of an order dispensing with its production authorizes the court to direct the cancellation of a mortgage without producing the same, if satisfactory reasons are shown.</p> <p>Thus, where a mortgagor wishing to sell the property free of incumbrances shows that the mortgage has been lost, he is entitled to an order for a discharge of the mortgage of record upon producing a satisfaction piece only.</p> <p>Where the recording officer opposed a motion for such order in the belief that it was his duty to do so, he will not be charged with the costs of an appeal.</p>

<p>Contract — indemnity against loss — damage essential to recovery — corporation — dissolution does not make stock worthless — evidence.</p> <p>No cause of action exists on a contract to indemnify against loss until damages are sustained.</p> <p>Where defendant, a promoter, in order to persuade plaintiff to invest in certain stock, wrote to him that he would guarantee his money with interest personally, the contract is one to indemnify against loss and not an agreement to repurchase the stock on demand.</p> <p>Where plaintiff, relying on such guaranty, purchased the stock and the corporation later having transferred all its property to a cemetery association in exchange for a certificate of indebtedness, voted to dissolve, the stockholders to accept aliquot parts of the certificate in proportion to the stock held by them, the plaintiff, who refused to surrender his stock, cannot compel the defendant to repurchase the same.</p> <p>In order to recover on the guaranty, plaintiff was hound to show that after the lapse of a reasonable time the stock or the rights represented by it had become wholly or partially worthless.</p> <p>The dissolution of the corporation did not render the stock worthless since rights in the certificate of indebtedness attached to it, and proof that neither the stock of the corporation nor that of the cemetery association was dealt in on the stock exchange, is insufficient to show that it had no value.</p>

Appeal by the defendants, Jacob Yon Tobel and another, copartners, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New Yoik on the 10th day of February, 1909, granting the plaintiff’s motion for a discovery and inspection of the books of the defendants.

Appeal by the plaintiff, Theodore S. van Keimpst, from an order of the Supreme Court, made at the Dew York Special Term and entered in the office of the clerk of the county of Dew York on the 30th day of October, 1908, denying the plaintiff’s motion for a temporary injunction.

Appeal by the defendants, Nathan Schloss and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of March, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of March, 1908, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, the Hew Jersey and Hudson Biver Bailway and Ferry Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 16th day of June, 1908, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by John Murray from portions of a decree of the Surrogate’s Court of the county of ¡New York, entered in said Surrogate’s Court on the 30th day of December, 1908.</p>

Appeal by the defendant, The Columbian National Life Insurance Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of March, 1909, continuing an injunction pendente lite. For opinion of Special Term see Webster v. Ooluinbian Nat. Life Ins. Go. (62 Mise. Hep. 345).

Appeal by the defendant, William Muldoon, from a judgment of the Supreme - Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 17th day of June, 1907, upon the verdict of a jury for $1,000, and also from an order bearing date the 12th day of June, 1907, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

<p>Principal and surety — undertaking that student will pay sums due to college—liability of sureties — infancy of principal—failure of foreign incorporated college to register here.</p> <p>Persons who executed a bond to a college guaranteeing the payment of such sums as shall become due from a certain student ‘ ‘ for the rent of any room which may be assigned to him in accordance with his application before he becomes a student in the university” are liable on the undertaking although their principal having engaged a room for the last year of his course, did not return to college and use the same, if the college authorities in order to reduce the damage have used reasonable effort to rent the room to other persons without success.</p> <p>The sureties cannot escape liability upon-the theory that they were bound only for the rent of rooms assigned their principal before entering the university, as the contract is not capable of that construction.</p> <p>The sureties cannot escape liability because the college, a foreign corporation, is not registered in this State, as required by the General Corporation Law.</p> <p>Nor is it a defense that the principal was an infant at the time he engaged the rooms.</p>

<p>Railroad — negligence—collision with vehicle driving on track— erroneous charge.</p> <p>Where a plaintiff, suing to recover for injuries received by a collision while driving upon the defendant’s tracks, has testified that after driving on the track for several blocks he looked back and saw the car about thirty-five feet away, and was struck while he was trying to tui n out, it is error for the court to decide the negligence of the defendant and the contributory negligence of the plaintiff as matters of law, and to instruct the jury that the only question is as to whether the plaintiff suffered any injury.</p> <p>The plaintiff was bound to show affirmatively that he was free from contributory negligence, and, being an interested witness, his testimony raised an issue for the jury, and, even if they believed his testimony, it was still a question of fact as to whether he exercised the care the circumstances required.</p> <p>In such action it is error to refuse to charge that a street surface railway has a paramount right of way on its tracks in the middle of a block.</p>

Appeal hy the defendant, Congregation Bikur Cholim of Brooklyn, E. D., from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 14th day of December, 1908.

<p>Stailroad — negligence—injury to employee alighting from box car— facts not justifying recovery — acts by superintendent outside his duties.</p> <p>Where the employee of a railroad, having finished his day’s work, voluntarily entered a box car standing upon the track while waiting for a train to take him home, instead of making use of the railroad station less than 100 feet away, and, being warned that his train was approaching, backed out of the side door of the car, and while descending a ladder to the ground was struck by the approaching train, he cannot recover for the injuries received.</p> <p>Although the plaintiff entered the car with his foreman, and was invited to alight by him as the train approached, the foreman was not engaged in the performance of any duty owed to the railroad, for the day’s work had been completed, and the two were merely waiting for the train to take them home.</p> <p>Chapter 657 of the Laws of 1906, providing that persons in the service of a railroad intrusted with superintendence are not fellow-servants, applies only where they are acting in the performance of duties to the railroad.</p>

<p>Pleading—frivolous denial — attorney and client — effect of failure to appeal from order allowing attorney to continue action.</p> <p>The denial of all knowledge or information sufficient to form a belief as to allegations of a personal transaction with the defendant is frivolous.</p> <p>Where the parties to an action to recover money loaned settled the case without consideration, a defendant who has not appealed from an order granting the plaintiff’s attorney leave to continue the action for the purpose of determining his right to a contingent fee, and who has not contested the attorney’s right at trial, cannot raise the question on appeal.</p> <p>Such action is not to enforce the lien, but to determine the amount due under the agreement for a contingent fee.</p> <p>Gaynob, J., dissented, with opinion.</p>

Appeal by the defendant, Richard Goodwin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings' on the 17th day of December, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Apfeal by the defendants, Charles M. Holcomb, individually, and Charles M. Holcomb and Louis I. Grimes, as executors, etc., of Charles Cranston, deceased, from an order of the County Court of Kings county, entered in the office of the cleric of said county on the 2d day of February, 1909, confirming the report of a referee determining the rights of claimants to surplus moneys arising from the sale on foreclosure of certain premises.

<p>Eminent domain — condemnation of lands to protect water supply — award for fee of lands beneath water.</p> <p>Where a city, having already acquired a right to take waters from a lake, institutes a further proceeding to condemn a strip of land bordering the lake so as to cut off riparian rights and protect the waters from pollution, an award should be made not only for the taking of the riparian rights of fishing, boating, ice cutting, etc., but also for the fee owned by abutting owners in the lands beneath the waters.</p>

<p>Will — revocation by second will — presumption where will cannot be found—when no revival of prior will — proof necessary to show that prior will was revoked by subsequent lost will.</p> <p>A duly executed will containing a revocation clause revokes a prior will and a destruction of the second will with the intention of revoking it does not revive the former will.</p> <p>Where a will which has been in the custody of the testator is not found after his death, it is presumed that he destroyed it with an intention to revoke. Although sections 2621 and 1865 of the Code of Civil Procedure provide that a lost will shall not be probated unless it was in existence at the time of the testator’s death, or was fraudulently destroyed in his lifetime, and unless its provisions are clearly proved' by at least two credible witnesses, a correct copy being equivalent to one witness, the sections need not be complied with in order to establish that a second will containing a revocation clause, but not found after the testator’s death, was duly executed so as to defeat the probate of the prior will. It is one thing to probate a lost will and another thing to establish that a second will revolting the former will had been duly executed and left in the possession of the testator.</p> <p>Thus, the fact of the execution of the second will may be established by the testimony of a person who drew and witnessed both wills where the other subscribing witness to the second will is dead.</p>

<p>Principal and agent — broker’s action for commissions — conditions precedent to recovery.</p> <p>Where a contract for the sale of lands provides that the broker shall be entitled to his commissions only when the balance of the purchase price is paid and the deed actually delivered, the broker, in order to recover, must show either that the conditions precedent were performed or that non-performance was the fault of his principal.</p>

<p>Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Orange on the 4th day of March, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office'on the 7th day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, George Reuberger, an infant, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 7th day of November, 1908, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term.

<p>Libel —■ unehastiiy ■—■ question for jury.</p>

<p>Appeal from an order of the New York Special Term, entered on the 34th day of December, 1908, opening a default.</p>

<p>Appeal from an order of the New York Special Term, entered on the 11th day of January, 1909, denying the appellant’s motion to be substituted as plaintiff.</p>

<p>Receiver — inadequacy of mortgaged property.</p>

<p>Appeal from a portion of an order, entered in the New York county clerk’s office on the 1st day of February, 1909, denying a motion to vacate an order for the examination of the defendant and of the witness Wolffram.</p>

<p>Appeal from an order, entered in the Hew York county clerk’s office on the 17th day of December, 1908, modifying a final decree of divorce herein.</p>

<p>Appeal from an order, entered in the Hew York county clerk’s office on the 18th day of February, 1909, granting plaintiff’s motion for an injunction pendente lite.</p>

<p>Appeal from an order vacating an order for the examination of defendants before trial.</p>

<p>Appeal from an order of the Special Term, entered in the Hew York county clerk’s office on the 20th day of January, 1909, granting leave to serve an amended complaint.</p>

<p> Order for examination. </p>

<p>Appeal from an order entered in the Hew York county clerk's office on the 24th day'of March, 1908, as resettled by an order dated the 3d day of July. 1908, and entered in said clerk’s office, granting plaintiffs leave to serve an amended complaint.</p>

.Appeal from an order entered in the Hew York county clerk’s office on the 25th ¿lay of January, 1909, denying a motion for an inj unction pendente lite.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of said county on the 28d day of May, 1908, upon the verdict of a j ury for $700, and also from, an order entered in said clerk’s office on the 20th day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes.

<p>Nuisance — maintenance of toilets — injury to foundations.</p>

Appeal by the defendant from an order of the Special Term, entered in the office of the clerk of the county of Kings on the 22d day of January, 1909, granting the relator’s application for a peremptory writ of mandamus.

<p>Appeal from an order entered in the New York county clerk’s office on the 11th day of February, 1909, requiring plaintiff to furnish a bill of particulars.</p>

<p>Appeal from an order granting an application to vacate an ex parte order for the examination of one of the defendants.</p>

<p>Appeal from an order entered in the New York county clerk’s office on the 1st day of February, 1909, denying a motion to vacate an order of arrest.</p>