Volume 138 — New York Reports

The relator, a Pennsylvania railroad corporation, whose line extends into other states, but not into this state, operates in connection with its road a ferry across the Hudson river to the city of New York, .where it has terminal facilities used in receiving and delivering freight and passengers; it collects in that city, money due for transportation of freight to and from it, and sells there passenger tickets, employing a large number of agents, clerks and laborers.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made December 31, 1891, which overruled plaintiff’s Exceptions and directed judgment for defendant upon a verdict directed by the court.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

The defendant P. claimed title hy adverse possession. Held: that no permanent appropriation of the land by 0. was shown and the evidence failed to establish adverse possession; that plaintiff, who claimed under the comptroller’s deed, having established a legal title thereunder, was presumed to have been in possession within the time prescribed hy law, and the occupation hy another was to be…

<p>Appeal from order of the General Term of the Court of Common Pleas for the city and county of Hew York, made February 6, 1893, which affirmed an order of Special Term confirming the report of a referee directing the distribution of surplus moneys in an action brought for the foreclosure of a mortgage.</p> <p>The facts, so far as material, are stated in the opinion.</p>

This was an action for an accounting of the surviving executors of the estate of Paul SpofEord, deceased. The question on this appeal relates to the true construction of the sixth article in an agreement of settlement made between the parties June 6, 1891. When the agreement was signed by the appellant Joseph L. SpofEord, the suit for the accounting had been on trial before a referee for a year or more, and a large mass of evidence had been taken.

<p>A foreign judgment, where the court had jurisdiction of the parties and the subject-matter, is conclusive upon the merits; it can be impeached only by proof that the court had not jurisdiction or that it was procured by means of fraud.</p> <p>The refusal of the foreign tribunal to allow a commission to examine witnesses in this state does not affect the conclusive character of the judgment; and this is so even if it appears that by the refusal some legal right of the party applying for the commission was denied.</p> <p>In an action upon a foreign judgment a copy of the judgment record, with the attestation of the clerk of the court and the certificates required by the Code of Civil Procedure (§ 952) attached, was offered in evidence. The attestation certified that the papers were “true copies of the record filed and legally kept in the custody of the court.” It was objected that the certificate was insufficient, in that it did not state that the copy had been compared by the clerk with the original, and that it was “a correct transcript therefrom and of the whole of the original,” as prescribed by said Code (§ 957). Held, untenable; and that the judgment record was properly authenticated.</p>

These actions were brought by abutting owners of lots on West Broadway in the city of Yew York, to restrain the operation and maintenance by defendants of their road in said street and for damages. The facts, so far as material, are stated in the opinion.

<p>Í. Indictment—Murder.</p> <p>An indictment for murder in the common law form is proper,’ ■ ■ and under it the people must prove any case which amounts to murder under the statute, and if the proof does not bring the case within some one of the statute definitions of'murder, it is the duty of the court to give proper instructions to that effect to the jury, and, unless it appears that the court has failed so to do upon request, the appellate court will presume that the proper instructions were given.</p> <p>2. Evidence—Expert.</p> <p>It is error for a physcian to testify as to whether the form of insanity, described by the defendant in a trial for murder, is, or is not, known to the medical profession.</p> <p>3. Same—Homicide.</p> <p>Evidence, tending to show that defendant’s wife and a third party were maintaining illicit relations, is not admissible upon the trial of an indictment for murder, where the defendant was ignorant of it.</p> <p>4. Homicide—Proof.</p> <p>The evidence, in this case, was held to show a cool and deliberate murder of his wife by defendant.</p>

<p>Defendant issued a policy of insurance for §5,000 upon a vessel for one year from August 3, 1888. The policy contained a provision that defendant would “return pro rata premium for every thirty days of unexpired term if the policy be canceled on arrival.” On November twenty-second the vessel sailed on a voyage, the ordinary length of which was seven days. At the request of plaintiff, then agent of the owner of the vessel, the policy was canceled at and from December third, and the unearned premium, §333.33, returned. At that time neither party had heard from the vessel since it sailed; plaintiff supposed it had arrived. The vessel never reached her port of destination, but was lost prior to December third. In an action to set aside the cancellation and to recover upon the policy, held, that the cancellation looked to the future, not the past, and if binding, it did not absolve defendant from liability already incurred; also, that as at the time of the cancellation an absolute obligation existed to pay the amount of the policy, it was not discharged by the cancellation and payment made, and this, even if the parties had known of the loss, and had by parol agreement agreed that defendant should be discharged by the payment; also that as the cancellation was made under a mistake of fact, defendant was entitled to have it rescinded, if necessary.</p> <p>Dambmann v. Sehulting (75 N. Y. 55); WMttemore v, Farrington (76 id. 457), distinguished.</p> <p>Proofs of loss were furnished April 8, 1889, and in May, 1890, plaintiff offered to return the §333.33. No defense based upon ladies was set up in the answer, the question was not raised on the trial, and there was no finding in reference thereto. Held, that the question could not be raised on appeal.</p>

Appeal ' from order of the General Term of the Supreme Court in the second judicial department, made September 15, 1892, which affirmed an order of Special Term denying an application for a writ of mandamus.

This action was brought by plaintiff as assignee of a policy of insurance issued by defendant to Seth H. Merriman, plaintiffs assignor. The facts, so far as material, are stated in the opinion.

<p>Appeal from an award of the Board of Claims, made June 24, 1891, in favor of claimant.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made November 17,1891, which modified and affirmed, as modified, a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p> <p>This was an action for the foreclosure of a mortgage.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>In proceedings for a supersedeas of a commission de lunático inquirendo, based upon the ground that the lunatic is no longer insane, the petitioner has not a legal right to have the question of his sanity submitted to and determined by a jury; but the manner of its determination, whether upon affidavits, by personal examination of witnesses in court, or by reference to a referee to take the evidence and report thereon, or by trial before a jury, is in the discretion of the court.</p>

<p>The words, “and” and “or” when used in a statute are convertible as the sense may require.</p> <p>Under the provisions of the Corporation Act of 1890 (§ 60, chap. 566, Laws of 1890) authorizing the formation of corporations “for manufacturing and supplying gas for lighting * * * or for manufacturing electricity for producing light, heat or power,” a corporation is not limited to one of the purposes stated, but both may be combined in the same certificate.</p> <p>While the said act was intended as a revision of existing laws, the laws so-revised were amended, and it was the legislative intent, in adopting so much of the revision as relates to gas and electric companies, not to curtail the powers and purposes of such corporations, but to permit them to amend their certificates in such a way as to authorize them to enlarge their purposes and objects and to exercise powers beyond the limit within which they were before restricted.</p> <p>Accordingly held, that a gas company organized under the act of 1848 (Ohap. 37, Laws of 1848) and which under the acts of 1879 (Ohap. 513, Laws of 1879) and 1883 (Ohap. 73, Laws of 1883) was authorized to use electricity for heating purposes, was entitled to amend its certificate so as to enable it to manufacture and use electricity for producing light, heat and power, under the provisions of the “ Stock Corporation Law” of 1893 (§ 33, chap. 688, Laws of 1893) authorizing any stock corporation theretofore organized to amend its certificate and extend or alter its business and powers, so as to include any purpose or powers which at the time of such extension might properly be included in the certificate for the formation of a corporation of the same general character under any general law.</p> <p>One of the additional powers which the relator sought to acquire by the amended certificate was to exchange its stock for that of an electric light company. JETeld, that while this was in effect the merging of the business and franchise of the two companies, it might be done by an amendment to the certificate, and the corporation was not compelled to resort to the provisions of the general law (Subd. 3, § 61, chap. 566, Laws of 1890; § 8, chap. 691, Laws of 1893) providing for consolidation.</p> <p>Also held, that upon refusal of the secretary of state to file the amended certificate, that said corporation was entitled to a peremptory writ of mandamus compelling such filing.</p>

Reported below, 66 Hun, 122. Appeal from order of the General Term of the Supreme Court in the first judicial department, made November 18, 1892, which affirmed an order of Special Term, imposing a fine upon the Wyandance Brick and Terra Cotta Company for neglecting and refusing to pay the personal tax assessed against it for the year 1890. The facts, so far as material, are stated in the opinion.

<p>This action was brought by the plaintiff to restrain defendant from plowing np and scraping away the earth in the street or avenue called St. John’s Park (formerly Hughes Park), in the village of Charlotte in the county of Monroe, and from lowering the grade thereof and for damages for excavations and alteration of the grade already made.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>The nature of the action, and the material facts, are stated in the opinion.</p>

<p>After the commencement of an action by an abutting owner to restrain the operation of an elevated railroad in a city street in front of his premises, the railroad corporations commenced proceedings under the General Railroad Act (Chap. 140, Laws of 1850, as amended), for the purpose of acquiring plaintiff’s interest in the street. An appraisal was made by the commissioners appointed therein, which was confirmed by the Special Term. Held, that this determination as to the value of plaintiff’s property interest was conclusive in the action upon both parties, it not having been set aside, or reversed, or the proceedings abandoned; that the fact that the order of confirmation had not been recorded as required by said act (§ 18, as amended by chap. 198, Laws of 1876), did not affect its conclusive character.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made February 2, 1892, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>The bond was joint and several. One of the sureties died after the commencement of the action thereon. Held, that the estate of the deceased surety was not discharged; and that the action was properly revived against his personal representatives. (Code Civ. Pro. § 454.)</p> <p>There was no dispute between the guardian and ward as to the amount in the hands of the former belonging to the latter. The bond was conditioned for the faithful performance of his duty by the guardian, and that he would render a just and true account; the judgment charged the sureties with the costs in the action against the guardian. Held, error; that while, under the condition of the bond that the guardian will account, the sureties could not be made liable until after a decree or judgment, in the proper court, settling the account, and while the sureties might be made liable for costs included in such decree or judgment, as here the account was not disputed, and the ward assumed to settle without an accounting, and to release his guardian, and authorized a decree to be entered to that effect, and was obliged to bring the action to remove the obstacles so interposed with his consent to an action upon the bond, the costs incurred were not within the condition of the bond.</p> <p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made April 4, 1892, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Circuit without a jury.</p> <p>This was an action upon the bond of Edwin B. Low, as guardian of William O. Douglass,</p> <p>The facts, so far as material, are stated in the opinion.</p>

This was an action for the construction of a clause in the will of Allen Ayrault, deceased. The clause in question and the facts, so far as material, are set forth in the opinion.

The distinction in the rule between a case like this, where the demand is unliquidated, and one where the claim is upon a liquidated demand, pointed out. Appeal from judgment of the G-eneral Term of the Court of Common Pleas for the city and county of Hew York, entered upon an order made December 21, 1891, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial without a jury.

<p>To entitle a plaintiff in an action for libel to give proof in aggravation of Ms damages, wMch proof in effect goes to enlarge the character of the libel itself, he must set up the facts in his complaint, and tMs, although the article published by defendant is libellous .per se.</p> <p>In an action for libel plaintiff’s complaint alleged, and it appeared, that defendant published in its newspaper an article charging plaintiff with being “as big a rascal ” as one McD. Upon the trial plaintiff offered in evidence certain arcicles published in defendant’s newspaper some years before the publication of the one in question in which the character of McD. was questioned in strong terms. TMs was objected to on the ground, among others, that there were no averments in the complaint as to McD’s character. The objection was overruled. Held. error.</p>

This action was brought to restrain the defendant from an alleged infringement of plaintiffs’ wrappers, labels and packages used in the sale of tea, and of their alleged trade name of “ Black Package Tea,” and for an accounting of profits.

This was an action in equity to restrain the defendant, the Germania Fire Insurance Company, from interfering with the closing up by one Stoddart of the business of “ The Hew York Underwriters Agency,” pursuant to an agreement between that company and the plaintiff, the Hanover Fire Insurance Company.

This action was brought for an injunction and to recover damages on account of the maintenance and operation by defendants of an elevated railroad in front of plaintiff’s premises on Park Row and Chambers street in the city of Mew York. The facts, so far as material, are stated in the opinion.

Appeal.from order of tlie General Term of the Supreme Court in the second judicial department, made Rovember 3, 1892, which, affirmed an order of Special Term denying a. motion by defendant to set aside the service of the summons' and complaint herein. This was an action upon a policy of insurance issued by-defendant. The facts, so far as material, are stated in the opinion.

The relief asked for by the complaint in this action was that. the judgment in an action for divorce between the plaintiff and the defendant, Norman H. Galusha, be opened; that a deed or separation agreement between said parties be adjudged invalid on the ground that its execution was obtained by undue influence, and it was inequitable, unjust and unfair by its terms; that, so far as it purports to limit the allowance to plaintiff for her support, it be set aside and…

This is an appeal from a final judgment entered in favor of the defendant upon its demurrer to the plaintiff’s complaint.

This action was brought to restrain defendant from com structing and maintaining, and to compel the removal of, a bow window constructed by him in front of premises owned by him on the north side of West Thirtieth street in the city of Mew York. The facts, so far as material, are stated in the opinion.

<p>A brakeman on top of a moving train, as matter of law, is not chargeable with negligence, simply because he does not constantly bear in mind the precise location where his train and where every bridge over the track is.</p> <p>Williams v. J)., L. <6 W. B. B. Co. (116 N. Y. 638), distinguished.</p> <p>Plaintiff, a brakeman in defendant’s employ, while standing on top of a freight car on a moving train, was struck by a low bridge and injured. In an action to recover damages these facts appeared : It was plaintiff’s duty to be on top of the cars, among other things for the purpose of keeping watch to see that the train did not part. There were fifty-four cars in the train, and two brakemen upon it; at the time of the accident the train was at a place where there was a reverse curve in the road, and more than ordinary risk of its brealdng. Plaintiff was standing with his face to the rear of the train in a position most effectually to discharge his duty; he had been in defendant’s employ for several weeks, and knew of the existence of the bridge, but was not at the time aware that he was approaching it, and had no warning of the danger. Defendant had, in compliance with the statute (Chap. 439, Laws of 1884), erected warning signals called “telltales” to warn brakemen on the top of cars of their approach to bridges. The one at this bridge was out of order so that it gave no warning. Held, that plaintiff was not as matter of law chargeable under the circumstances with contributory negligence, because he did not take notice of the fact that he was approaching the bridge; also that defendant was guilty of negligence in not keeping the telltale in order.</p> <p>The telltale was placed fifty-one feet from the bridge. One of plaintiff’s witnesses was asked, “What is the usual and ordinary distance to erect these telltales from the bridge? ” This was objected to as incompetent and objection sustained. Held, error, that it was competent for plaintiff to prove that the telltale was placed too near the bridge to answer the purpose of the statute, and upon that point it was proper to show the custom in this respect.</p>

McGillivray and removing Edward C. Hawks from his office as trustee under the last will and testament of Eli B. Smith, deceased, and appointing John L. Williams in his place. The facts, so far as material, are stated in the opinion.

<p>Appeal from judgment of the General Term of the Supreme-Court in the second judicial department, entered upon an order made February 18, 1893, which affirmed an order of Special Term, granting a writ of certiorari to review the action of the assessors of the town of Poughkeepsie in the county of Dutchess and reducing an assessment made by them upon property of the relator.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The presumption that a public officer, upon whom an official duty has been imposed by statute, has performed that duty, does not authorize a presumption that a committee appointed by the common council of a city to see that private persons perform some act, attended to the business so intrusted to it, and that the private persons performed the act. Reported below, 68 Hun, 521.

This action was brought to have an alleged surrender of a policy of insurance issued by defendant upon the life of John Foley, adjudged void, and to have the policy declared to be -in force in favor of plaintiffs, and to compel a delivery thereof to them upon payment of certain back premiums.

This was an action for the specific performance of a com tract for the sale of certain real estate in the city of Brooklyn, and was brought by plaintiff as assignee of the original vendee. The facts, so far as material, are stated in the opinion.

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered Upon an order made Hay 13,1892, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term, and affirmed an order denying a motion for a new trial.</p> <p>This was an action for the foreclosure of a mortgage executed by defendant to plaintiff, dated and acknowledged January 13, 1885, which purported to secure the payment f‘ of any and all notes made by the El Oro Hining Company and indorsed by William T. Hamilton and William H. Thompson, and now held and owned by the party of the second part; and of any and all renewals of said notes ; and also to secure said second party from all loss by reason of his liability as indorser upon any and all notes made by said El Oro Mining Company and indorsed by said Hamilton and Thompson, and any and all renewals thereof; also cmy a/nd all other notes a/nd drafts made or mdorsed by said Hamilton now or hereafter owned by said second pa/rty or on which he may be liable as vndorserJ</p> <p>Defendant’s answer denied the execution of the mortgage, and alleged that after it was delivered to plaintiff it had been altered by writing in it the clause above printed in italics. It appeared that the mortgage was drawn by an attorney for plaintiff, and that said clause in italics was written in under his directions after the mortgage had been executed, with the intention of subsequently obtaining the consent of the mortgagor thereto, and then delivered to the husband of the mortgagor, with the request that he obtain his wife’s assent to the alteration, which he promised to do, and to have the mortgage reacknowledged; that shortly after it was returned to said attorney by the notary before whom the mortgage was acknowledged, with the statement that it had been reacknowledged by the mortgagor. There was no proof that the mortgagor’s consent to the alteration had been obtained, or that she had reacknowledgéd the mortgage. Plaintiff was wholly ignorant of said alteration until after the commencement of this action, in which a foreclosure was sought on the ground of non-payment of paper which confessedly the mortgage was originally given to secure.</p>

<p>It seems the liability of sureties upon an undertaking given to stay pro, ceedings in an action, depends upon its efficacy in accomplishing the result contemplated, and if for any valid reason it is disregarded or fails to secure the stay, it may not be enforced.</p> <p>Upon application of the defendant in certain actions brought by plaintiffs herein, a commission to take the testimony of a witness was issued, and it was ordered that tire trial of the actions should be stayed until the return of the commission, provided defendant gave an undertaking conditioned to pay any judgment recovered against him in either of said actions. Plaintiffs stipulated to accept the undertaking of a surety company for a sum specified, and an undertaking on the part of defendant to pay any judgments recovered in said actions over and Above said sum, and in accordance therewith the undertakings were executed. In an action upon defendant’s undertaking, it appeared that the witness whose testimony was required was a resident of this state, but At the time the commission was issued in another country. The commissioner, on receipt of the commission, delivered it to the witness to enable him to write out his answers to the interrogatories, which he did, and returned it to the commissioner, but never signed or verified it or Appeared before the commissioner. Said witness returned to this state about eighteen months after the issuing of the commission, and the court thereupon, on application of plaintiffs, vacated that portion of the order which stayed all proceedings until the return of the commission, and one of the actions was tried and judgment recovered against the defendant therein. Held, that the stay "was granted not simply for the purpose of delay, but to enable the defendant to procure through the commission testimony material to him; that the undertaking operated as a stay until the said defendant could procure the attendance of the witness in court, and so it secured the end sought; that the return of the . witness was equivalent to a return of the commission; that the undertaking, therefore, was founded on a good consideration and plaintiffs were entitled to recover thereon.</p>

This is an appeal by the plaintiff from an order of the General Term of the Supreme Court of the first department, which reversed upon the facts as well as the law so much of a judgment entered upon the report of a referee as was in favor of the plaintiff, and granted a new trial of the issues involved before another referee.

<p>' Appeal from the judgment of the general term of the supreme ¿court, third department, reversing the judgment of the court of sessions oí Albany county, which sustained the demurrer to the indictment against the defendants and discharging them.</p> <p>The indictment is as follows: '</p> <p>The grand jury of the county of Albany accuse Charles P. Peck and Elbert Rodgers of the crime of removing and destroying public documents, committed as follows:</p> <p>“The said Charles P. Peek, heretofore and at the time of the commission of the acts hereafter stated, was and now is the commissioner of statistics of labor of the state of 3STew York, a public officer and a public office duly created by an act of the legislature of the state of Yew York, and as such commissioner it became and was his duty to collect, assort, systematize and present, in annual reports to the legislature, statistical details relating to all departments of labor in this state, and especially in relation to the commercial, industrial, social and sanitary conditions of workingmen, and to the productive industries of this state; and that at all the times hereafter referred to it was the legal duty of every person, owner, operator, manager and lessee of every mine, factory, workshop, warehouse, elevator, foundry, machine shop and other manufacturing establishment in the state, and of every agent and employe of such owner, operator, manager and lessee of every such mine, factory, work-shop, warehouse, elevator, foundry, machine-shop and other manufacturing establishment, to furnish to such commissioner, when requested by Mm, statistical and other inf ormation, in their possession or under their control, relative to the lawful duties of such commissioner as above set forth, and to truthfully answer questions concerning such lawful duties of the said commissioner sent to them by said commissioner by circular.</p> <p>“That heretofore and in the year 1891, between the first day of January and the 31st day of December in said year, and in the year 1892, between the 1st day of January and the 1st day of September in said year, the said defendant, Charles P. Peck, as Commissioner of Statistics of Labor of the State of Yew York, in pursuance of the duties devolved on him by law to collect, assort and systematize statistical details relating to all departments of labor in this state, and especially in relation to the commercial, industrial, social and sanitary condition of the working, men, and to the productive industries of this state, sent circulars to the owners, operators, managers and lessees of the mines, factories, workshops, warehouses, elevators, foundries, machine shops and other manufacturing establishments of this state, which said- circulars did then and there contain questions asking for statistical information relating to the lawful duties of such commissioner, and relating to the details of all departments of labor in this state, and especially in relation to ■the commercial, industrial, social and sanitary condition of workingmen in this state, and to the productive industries of tills, state, and did at the times aforesaid receive answers to the questions contained in said circulars from the owners, operators, managers and lessees of the mines, factories, workshops, warehouses, elevators, foundries, machine shops and other manufacturing establishments of this state, which said answers-were contained in and written on the circulars ®o sent out by the said Charles F. Peck, as Commissioner of Statistics of Labor of the State of New York, and which said answers, then and there being, were and are the statistical details relating to all departments of labor in the state of New York, and especially in relation to the commercial, industrial, social and sanitary condition of workingmen of the state of New York and to the productive industries of the state of New York, and which said circulars containing the questions aforesaid, and the answers aforesaid, were sent to and received by the said defendant, Charles F. Peck, as such Commissioner of Statistics of Labor of the State of New York, by due authority of law, at Ms office in the new capítol in the city of Albany, and known as the Bureau of Labor Statistics -of the State of New York, he, the said Charles F. Peck, being then and there a public officer of the state of New York, and received and filed and deposited by said Charles F. Peck in the office of the Bureau of Labor Statistics of the State of New York, at the headquarters thereof in the new capítol, in the city of Albany, the said Bureau of Labor Statistics being ■and was then and there a public office of the state of New York, and being then and there received, filed and deposited by due authority of law, and being and were then and there public records, books, papers and documents of the state of New York.</p> <p>And the grand jury further say that the said Charles F. Peck and Elbert Rodgers, on the 11th day of'September, 1892, at the city of Albany, in this county, feloniously, wilfully and unlawfully did remove, mutilate, conceal and destroy the public records, books, papers and documents so as aforesaid filed and deposited by due authority of law in the office of the Bureau of Labor Statistics of the state of New York, in the new capítol, at the city of Albany, the same being then and there a public office of the state of New York, and the same being then and there filed and deposited by due authority of law, with the Commissioner of Statistics of Labor of the state of New York, at his office in the new capítol, in the city of Albany, he being then and there a public officer of the state of New York, and which said public records, books, papers and documents aforesaid, did then and there relate to and were the official statistical details relating to all departments of labor in the state of New York, and especially in relation to the commercial, industrial, social and sanitary condition of the workingmen of the state of New York, and to the productive industries of the state of New York for the years 1890 and 1891, and were and are the official and public records, books, papers and documents of the Bureau of Labor Statistics of the State of New York, and the official and public records, books, papers and documents of the People of the state of New York.</p> <p>“And the grand jury aforesaid further say that the public records, books, papers and documents aforesaid have been and are withheld by the said Charles F. Peck and Elbert Rodgers, and have been and were removed and mutilated by the said Charles E. Peck and Elbert Rodgers, and have been destroyed by the said Charles F. Peck and Elbert Rodgers, so that the grand jury are unable to give a better description of them than as above set forth, and so that the grand jury are unable to set them out in detail, and are unable to set them out in words and figures.</p> <p>“And so the grand jury aforesaid charge and accuse the said Charles F. Peck and the said Elbert Rodgers with feloniously, wilfully and unlawfully removing, mutilating, concealing and destroying public records, books, papers and documents contrary to the statute in such case made and provided.</p> <p>“JAMES W. EATON,</p> <p>“District Attorney of the County of Albany.”</p> <p>The defendants demurred separately to the indictment on the ground that it did not state facts sufficient to constitute a crime.</p>

<p>1. Appeals—'Count of appeals.</p> <p>In exercising the jurisdiction conferred by section 538 of the Code of Criminal Procedure in capital cases, the court of appeals will be governed by the practice regulating- the review of questions of fact upon appeal to the supreme court, and, in such cases, if there is a fair conflict in the evidence, or it is such that different inferences can be properly drawn from it, the determination of the jury will not be interfered with, unless it is clearly against the weight of evidence, or appears to have been influenced by passion, prejudice, mistake or corruption.</p> <p>2. Criminal law—Province of jury.</p> <p>Underour system of jurisprudenceitisthe exclusive province of the jury to determine whether the evidence, pointing to the guilt of the accused, is so lacking in convincing force as to leave an intelligent and discriminating mind in doubt as to the truth of the charge contained in the indictment.</p> <p>3. Same—Reasonable doubt.</p> <p>When the jury, by their verdict, have declared that no such condition of mental uncertainty has arisen from a contemplation of the evidence, the prisoner has had the full benefit of the rule which protects him from punishment unless his crime is established beyond a reasonable doubt, and the question is not open for review in the court of appeals, unless the case is so weak that the verdict should be set aside because against the weight of evidence, or for other sufficient cause.</p> <p>'4. Homicide—Insanity.</p> <p>An insane delusion with reference to the conduct and attitude of another cannot excuse the criminal act of taking his life, unless it is of such a character that, if it had been true, it would have rendered the homicide excusable or justifiable.</p> <p>5. Same.</p> <p>The existance of any delusion may be considered, in determining whether the defendant is so far mentally sound as to be conscious that he is doing a prohibited act.</p> <p>6. Same.</p> <p>If, when a specific act is contemplated, the accused has the power to know whether it is wrong to do it and right to refrain from doing it, the law presumes that he has also the power to choose between the right and the wrong course of action and will not permit either courts or juries to speculate as to its possible nonexistence.</p> <p>¡7. Same.</p> <p>A desire for self destruction and the adoption of means to secure it do not, of themselves, indicate a mental impairment which has advanced to the stage of irresponsibility.</p> <p>8. Trial—Charge.</p> <p>Single expressions cannot be dislocated from the context of a charge and construed as though they were the statement of separate and independent propositions; but the entire exposition of the law upon a given point by the court must be taken.</p>

<p>Appeal from judgment of the supreme court, general term, second department, affirming-conviction of defendailt of a uaisdem.ean-dr 'fo-r violation of chapter'646, Laws 1892.</p>

<p>The facts, so far as material, are stated in the opinion.</p>

This was an action to recover plaintiff’s dower in the estate of Anthony Robinson, defendant’s intestate. The facts, so far as material, are stated in the opinion.

This action was brought to obtain a sale of certain real estate and the disposition of the proceeds. The facts, so far as material, are stated in the opinion.

Central Nat. Bank v. Seligman (64 Hun, 615), reversed. Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made June 3, 1892, which modified and affirmed as modified a judgment in favor of plaintiffs, entered upon a decision of the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion.

' Appeal from order of the General Term of the Supreme Court in the fifth judicial department, made June 23, 1892, which denied a motion for a new trial and ordered judgment in favor of plaintiff upon a verdict. This was an action upon an alleged agreement between plaintiff and defendant for reinsurance of a risk taken by plaintiff upon property belonging to the Ridgway Lumber Company. The facts, so far as material, are stated in the opinion.

<p>The act of 1854 (Chap. 50, Laws of 1854) giving the Supreme Court authority to make an order, on application of any charitable, benevolent, etc., association, authorizing the mortgaging of its real estate, operates to prohibit the execution of such a mortgage without the order, and a mortgage executed without it is void.</p> <p>In an action to foreclose a mortgage when the plaintiff fails to establish its validity he is not entitled to recover upon the bond sought to be secured by the mortgage, although the execution of the bond is averred in the complaint; having failed to establish the mortgage he fails to . establish his cause of action.</p> <p>Even if it be in the power of the court to permit the plaintiff in such an action to change its form so as to permit him to enforce his legal remedy on the bond, this is in its discretion, and its refusal is not legal error. Reported below, 65 Hun, 31.</p>

<p>Proof of a statement by one conspirator, not made, or of an act of his not done, in pursuance of the conspiracy, is not competent evidence for or against his associates.</p> <p>It is proper to show, on cross-examination of a witness who has given material testimony against a party, hostility on his part against that party, and while it is in some measure in the discretion of the court as to how far such an examination may go, it is not within its discretion to refuse any and all evidence thereon, and so, a refusal to admit any testimony in reference thereto on cross-examination is error.</p>

<p>When upon an appeal to this court it appears that the cause of action stated in the complaint involves a sum less than §500, jurisdiction to review the judgment will not he' obtained by the mere fact that what purports to be a counterclaim for a greater amount appears upon the record, where upon an examination of the pleading it is plain that no facts are stated which would enable defendant to recover or give proof under it.</p> <p>It seems, a defendant may set up as many defenses as he may have, whether inconsistent or not.</p> <p>In an action upon a contract in writing the answer, after putting in issue the making of the contract, set up as a counterclaim that, at the time of and preceding the execution of the contract, the persons representing plaintiff made certain statements as to the benefits defendant would derive, which were untrue; it was not claimed that any fraudulent statement was made and no breach of the written agreement was alleged. At the opening of the trial the court required defendant’s counsel to elect whether he would rely upon the defenses set up in the answer or the counterclaim, on the ground that they were inconsistent; she elected to rely on the defenses. Held, that, conceding the ruling to be erroneous, the contract must be presumed to express all the binding stipulations of the parties, and as the counterclaim interposed did not state any facts constituting a defense or counterclaim, no evidence could be given under it, the ruling did not harm the defendant and so, was no ground for reversal. Where a contract in writing is made by one person in the name of and for the benefit of another, for whom he claims to act as agent, the alleged principal has such an interest therein that he may maintain an action thereon.</p>

<p>However improbable the testimony of a witness may appear, who testifies to a fact not in itself impossible in the ordinary course of events, the credibility, force and effect of such testimony is for the jury.</p> <p>The conversation was not at the general office of defendant, hut was in another state. Held, that this did not affect the power of the secretary to bind the company.</p> <p>The secretary of a corporation is one of its general managing agents, and when in the discharge of the duties of his office represents the corporation.</p> <p>It is within the general powers of the secretary of a life insurance company to waive prompt payment of premiums about to fall due on one of its policies, and the valid exercise of his power in this respect does not depend upon the particular place where he may be at the time.</p> <p>The test of his authority is not whether he acted in the general office of the company or in another state, hut whether at the time he was engaged in the discharge of the general duties of his office.</p> <p>Where the trial court directs a verdict, and thereafter on motion sets it aside and grants a new trial, on appeal from the order to the General Term the facts are not before it for the purpose of determining where the preponderance of testimony is, but the only question presented is as, to whether the trial court committed an error in granting the new trial, and unless it is clear there was no evidence to submit to the jury, the order should he sustained</p>

This was an action upon a contract. This appeal is from a judgment of the General Term in the second department, affirming a judgment rendered on the decision of the trial judge awarding damages to the plaintiff in the sum of $20,406.89, against the defendant.

<p>Appeal from order of the General Term of the Supreme Court in the second judicial department, made February 10, 1890, which affirmed an order of Special Term denying a motion to vacate and set aside the service of the summons herein.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made April 5, 1892, which affirmed a judgment in favor of plaintiffs entered upon a decision of the court on trial at Circuit without a jury.</p> <p>This action was upon a sight draft drawn by defendants for the purpose of paying a promissory note.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from order of the General Term of the Superior Court of Buffalo, made December 28, 1891, which reversed a judgment in favor of defendant entered upon the report of a referee and granted a new trial.</p> <p>This action was brought to recover freight moneys earned by the schooner George D. Russell, and received by defendant.</p>

It appeared that before the receipt of the letter defendant had criticised plaintiff’s conduct and said something about discharging her. Held: that it was defendant’s duty to freely criticise and even reprove plaintiff or any other teacher whenever in his judgment it was necessary, and the exercise of this right was not evidence of malice. ' The complaint set forth as a separate cause of action, that subsequent to the transactions above referred to, defendant stated, in the…

<p>Appeal from judgment of the G-eneral Term of the Supreme Court in the fifth judicial department, entered upon an order made March 29, 1892, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee.</p> <p>This action was brought to recover an alleged equitable interest in certain real estate.</p>

<p>In proceedings by certiorari to review the action of the state comptroller in imposing a tax upon the relator, a domestic corporation, under the Corporation Tax Act (Chap. 543, Laws of 1880, as amended by chap. 361, Laws of 1881, and chap. 501, Laws of 1885), it appeared that the entire capital of the relator was originally invested in patent rights; that corporations were formed in this state and other states to whom the relator-granted the right to use these patents, it receiving in compensation stock of such corporations, and during the year for which the tax was imposed it held such stock and received the dividends thereon. Held, that as to so much of said stock as was in corporations organized in this state it was capital of the relator employed in this state, and so it was a basis of taxation; but that as to the stock in corporations of other states it was capital employed outside of the state and was not to be taken into consideration.</p> <p>People v. American Bell Tel. Co. (117 N. Y. 346), distinguished.</p> <p>It was claimed that the relator held bonds of foreign corporations issued to it in payment for patent rights granted. Held, that so much of the relator’s capital as was invested in these bonds was a basis of taxation under the act; that said bonds were presumably held by the relator at its office in this state and had their situs at the domicile of the owner.</p> <p>Aside from the grants to domestic and foreign corporations of rights to use its patents, the relator retained its patent rights for use in territory not covered by the grants. Held, that the rights not granted were, within the meaning of the act, employed in this state.</p> <p>.A patent is a personal right conferred by the sovereign power upon and belonging to the patentee, and like other personal rights attends his person and exists where he is or where he puts it in use,</p>

This was an action by an abutting owner of property on Sixth avenue in the city of ¡New York to restrain the operation and maintenance by defendants of their road in said street and for damages. Upon the trial expert witnesses called upon the part of the. plaintiff were permitted to testify under objection and exception as to the value of plaintiff’s property before the road was built and its present value. The further facts, so far as material, are stated in the opinion.

Motion to dismiss appeals from judgments of the General Term of the Court of Common Pleas of the city of Yew York, entered upon an order made February 6,1893, which affirmed, judgments in favor of plaintiff, entered upon verdicts directed by the court. The facts, so far as material, are stated in the opinion.

On April first an injunction order was issued in an action brought by M. and another enjoining S. and the sons of 0. from voting, either… Held: that no violation of the injunction was shown, as the stock so voted on was transferred more than ten days prior to the election, and as it did not appear that the new stock book was used; that, being prohibited from using said book, the inspectors were placed in the same position as if it could not be found, and so the provision of…

This was a proceeding to review by certiorari the determination of the comptroller of the state in assessing upon the relator taxes under the corporation tax laws for the years 1880 to 1889 inclusive. The facts, so far as material, are stated in the opinion.

<p>"Where the comptroller of the city of Hew York failed to comply with the provision of the statute requiring him to issue and negotiate revenue bonds to pay the proportion of the state tax chargeable to the city and county of Hew York, held, that the municipality was properly charged with interest on the unpaid taxes from the time they should have been paid into the state treasury.</p> <p>The said comptroller bears the same relation to the state with respect to the payment of the state tax as does the county treasurer in other counties, and he is chargeable with the same duties and obligations.</p> <p>The provision, therefore, of the act of 1855 (Chap. 437, Laws of 1855) requiring the state comptroller to charge the several county treasurers with the amount of the state tax to be raised in their respective counties, and in case of default in payment of any balance due authorizing a recovery on behalf of the state for said balance, with interest from May first of the year when it ought to have been paid, applies to the city comptroller.</p> <p>"When a party seeks to recover or compel payment of a specified sum alleged to have fallen due before the commencement of the action or proceeding, and proof is given without exception as to the amount of interest that has accrued, and a general verdict is directed which includes interest, an exception to this direction does not raise the question on appeal as to the right to interest. To present that question the attention of the court should be directed to it either by objection to the proof of interest, so far as it depends upon the pleading, or by requiring some specific ruling or direction on that point.</p>

Bowen, q judgment in favor of plaintiff, entered upon a decision of the court at Special Term, and granted as to said Bowen a new trial.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made April 14, 1892, which reversed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term, and granted a new trial.</p>