Volume 14 — New York Miscellaneous Reports

<p>Mandamus — peremptory writ of—contracts — powers and duties of county comptroller — County Law, § 235.</p> <p>A contract for repairs to a county court house provided that the work should be done under the supervision of a member of the board of supervisors, and that upon his certificate as to the amount of work done, a certain per cent thereof should be paid for monthly. When such a certificate was presented for audit and allowance to the comptroller of the county, whose duty under section 235 of the County Law it is to examine all claims against the county for work, labor and services, and to advise an allowance or rejection of the same, he advised the board of supervisors to reject the claim solely on the ground that the contract, which involved an expenditure of more than $200, was void because made without advertising and competitive bidding, as required by a rule of the board of supervisors adopted pursuant to section 4 of chapter 418 of the Laws of 1908, and that the petitioner had not given a bond as required by the contract. It appeared, however, from the petition for a peremptory writ of mandamus to compel the comptroller to audit the claim and to sign a warrant on the county treasurer for the amount then due petitioner, that before the contract had been awarded the provision of the rule as to advertising for bids had been properly suspended by the unanimous consent of the board of supervisors under another of its rules. JLeld, that the contract had been lawfully awarded to petitioner.</p> <p>The comptroller in passing upon the validity of the contract, a duty which he was not required to perform, exceeded his statutory powers, and as his return to the petition for the writ conceded the amount due petitioner under the contract, his duties in the matter 'were purely ministerial and not judicial, and the petitioner therefore was entitled to a peremptory writ of mandamus commanding the comptroller to audit and allow the claim and certify the same to the board of supervisors for action.</p> <p>But, so far as the writ was asked to compel the comptroller to sign the warrant drawn on the county treasurer by the clerk and chairman of the board of supervisors, it must be denied.</p> <p>As any action on petitioner’s claim by the board of supervisors, in advance of the report of the comptroller thereon, would be premature, and there being no proof of a refusal of said board to audit and allow the claim, the petition for the writ as to the said board will be dismissed.</p> <p>Where upon an application for a writ of mandamus only part of the relief asked is granted, no costs will be allowed to either party.</p>

At the Trial Term, in October, 1919, the plaintiff had a verdict against the defendant. The decision of the motion for a nonsuit was reserved by the consent of the respective attorneys, until the coming in of a verdict. The defendant also made the usual motion for a new trial, and this is a decision of these two motions, rendered after oral and written arguments.

<p>Lands under water — riparian owners — title — surplus waters — canals — Barge canal.</p> <p>Prior to the commencement of the building of the Oswego canal in 1826 claimant’s predecessors in title owned the land on either side of the Oswego river at Minetto, and as riparian owners, also, of the bed of the river to its center, were vested with the right to use the water therefrom. On the west side of the river at the point in question, and at or near the present site of plaintiff’s structure, was a mill operated by water power derived from a wing dam extending from the westerly bank of the river into and up stream toward the center of the river. During the construction of the Oswego canal, the state destroyed said wing dam and built a log dam directly across the river and also a canal with a lock in a land cut around the easterly end of the dam. This dam had a crest elevation of about 295 feet Barge canal datum with an available working head of about seven and one-half feet and 540.5 square feet of openings through the bulkheads at the westerly end of the dam. Claimant’s predecessors in title were compensated for their water rights lost by the destruction of the wing dam by appropriations made for the old canal, which allowed them to draw water from the river under the increased head provided by the new dam. Accordingly, held, that after the state had built the original dam at Minetto claimant’s predecessors in title possessed no rights whatever to use, for power, the water at the easterly end of the dam where no openings had been left. When the state between 1866 and 1870 destroyed the original state dam and constructed in its place a stone dam with a crest elevation from eight to twelve inches higher than the old dam, nothing took place affecting the relation of the state and the riparian owners nor did it appear that their respective rights were in any way affected.</p> <p>In 1900 the crest of the stone dam was raised fifteen inches, thus creating an available working head of eight and one-half feet without flashboards and ten and one-half feet with flashboards, which claimant’s predecessors were permitted to use without objection on the part of the state. Meld, that such user in no way enlarged the legal rights of claimant’s predecessors nor could it, however long enjoyed, ripen into a vested interest.</p> <p>Upon the facts and the law applicable held, further, that the legal rights of claimant’s predecessors in and to the water of the river at Minetto immediately prior to the commencement of the Barge canal construction there in 1910 were confined to such an amount of the surplus waters as • could be drawn through the opening in the bulkhead at the westerly end of the dam.</p> <p>The claimant’s rights in and to the use of the surplus waters of the Oswego river have been in no way impaired or diminished by the Barge canal operations and appropriations made in connection therewith, and for the purpose thereof, at Minetto, except as such rights were temporarily interfered with during the construction of the 1870 dam and such rights are the same now as before the destruction of said dam.</p> <p>A so-called waiver and release executed in 1910 relating to the waters impounded at the new Minetto dam not required for the Barge canal or for purposes of navigation, which release was never executed by any one on behalf of the state, held to be inoperative because the preliminary conditions upon which it was based had not been met and because it was meaningless so far as having any influence on the determination of the rights of the parties here.</p>

<p>Motion to set aside indictment.</p> <p>Demurrer to second count of the indictment.</p>

<p>A contract for public printing other than legislative printing includes the election printing called for by sections 19 and 40 of chapter 680, Laws of 1892, and section 946 of the Code of Criminal Procedure, and the secretary of state may be compelled by mandamus to furnish the contractor with the necessary material from which such printing is to be done, although he had previously made arrangements for such printing with another party.</p>

<p>' Habeas cobpus to review conviction of relator by the Court of Special Sessions.</p>

<p>Proceedings on an appeal from an order assessing a transfer tax.</p>

<p>Proceedings on an appeal from an order assessing a tax.</p>

<p>Action to establish a lost will.</p>

<p>Discovery — when order directing, granted — decedents’ estates — insurance — Code Civ. Pro. § 2675.</p> <p>Where in a proceeding under section 2675 of the Code of Civil Procedure to discover property alleged to belong to the estate of decedent, no answer is interposed, the matter may proceed as an examination only.</p> <p>The petition stated that respondent, a sister of the decedent, withheld the amount of the death benefit due from a labor organization under a policy of insurance which was not payable to respondent by name, but which amount was paid to her under a clause of the policy which was solely for the protection of the insurance company. Meld, that such payment did not invest her with the absolute ownership of the money so paid and that an order directing her to deliver to the administratrix of decedent said amount and also a sum stated to be the savings of decedent which respondent received from the labor organization, should be granted.</p>

<p>Motion to vacate an order to show cause.</p>

<p>An affidavit for an order of publication which alleges that defendant is a resident of an adjoining state and that plaintiff will be unable to make personal service, and that deponent’s grounds of information and belief are correspondence with defendant and conversations with her son, but fails to allege due diligence or that defendant is actually in such other state at the time, is insufficient.</p>

<p>Proceeding upon the judicial settlement of the accounts of an executrix.</p>

<p>Motion to vacate an order requiring plaintiff to give security for costs.</p>

<p>Demurrer to reply.</p> <p>Plaintiff’s complaint is upon a promissory note for fifty dollars, and also upon a lease executed by the defendant for a parcel of ground situated in the town of Kirkland, in which lease the defendant undertook to pay the yearly rent of fifty dollars and one-half the taxes.</p> <p>Defendant in an amended answer to the complaint sets up by way of counterclaim to the alleged causes, of action that the defendant furnished to the plaintiff for his benefit and at his request lodging, stabling, board, food and provisions of the value of $123 ; and also, by way of further counterclaim,'that 1 the defendant, before the commencement of this action, and prior to September .8, 1893, furnished board and'lodging at the request of. the plaintiff, and that an account therefor was rendered in writing to- the plaintiff, who claims that there is eighty dollars due the defendant thereon. The answer, by way of a third counterclaim, alleges that between the 8th of September, 1893, and the 6th of April, 1894, the defendant furnished to the plaintiff, at his request, food, provisions, board and lodging -T that the same were of the amount and value of sixty dollars; and defendant’s answer demands judgment ■ against the plaintiff for the sum of $123, with interest.</p> <p>■Plaintiff served a reply, which was verified in July, 1895, which contained the following language: “ The plaintiff, for his reply to defendant’s counterclaim herein, alleges as follows : First. He denies the said counterclaim and each and every part thereof and the whole thereof.”</p> <p>To that reply the defendant demurs “ on the ground that the said attempted traverse is insufficient in law upon the face thereof.” ‘</p>

<p>Action in ejectment to recover possession of real property-in the city of Oswego, H. T. The plaintiff and the defendant Harriet ,0.: both claim to be owners of the property and entitled to possession.</p> <p>The title was concededly in one Irwin February 1, 1862. Through various persons the title was convened August, 17,. 1866, to Isaac G., the husband of the deféndant Rebecca G. November 6,1876, the husband deeded the property, through a third person, to his wife. She held the title until 1890, when, March- thirteenth, a mortgage was given upon it to the : Mercantile National Bank of Hartford, Conn..,, executed by. both the husband and wife,, to secure payment of a bond for $5,000, executed by .the-husband" alone. This mortgage-was foreelospd in 1892 by- an action commenced April fourth and judgment entered June twentieth. The husband had died-July 23, 1891, and only the widow was made .a party'deferid- . ant. The defendant . Harriet G. was a .daughter of the widow, and she and her mother both lived upon the property at the time of the foreclosure. The property was sold, under the judgment, April 8, 1893, and was bid in by, and deeded - to, plaintiff the same day, and the sale was confirmed; by-order of the court, November 18, 1893; .Thereafter, and in-November, 1893; plaintiff demanded possession of the prop- . erty from, both the widow and daughter. There was a refusal to surrender -possession, and-thereupon this action was at once" brought;, ... . '</p> <p>September 24, 1891, the widow deeded the premises to the daughter,; but this deed was never recorded. October -15, .1891,6 a deed of the property from the board of supervisors of Oswego county was given the daughter, but this deed was not recorded till December 16; "1892. March 23, 1892, another deed of the property from the board-of supervisors, of Oswego county was given the daughter, which was recorded three days later. The daughter claims to have taken possession of the property March . 10, 1892, under.her mother’s deed of September 24,1891. ■</p> <p>These are the respective "sources of title alleged by the parties and which are to be considered and passed upon.</p>

<p>Adoption — when order of, valid — probate of heirship — wills — life estates.</p> <p>Testator, who died in 1893, devised a life estate in a certain property to his son with remainder over to the son’s daughter in fee simple. By a decree entered in 1894, granting the son a divorce, he was awarded the custody of his said daughter who, with the consent of her father but not of her mother, was legally adopted by the petitioner herein in 1895. She died intestate in 1910 and her father died in 1917. In a probate of heirship proceeding instituted by the foster father held, that the order of adoption was valid, and that petitioner was entitled to a decree establishing that upon the death of testator’s granddaughter, he became the owner of the real estate in question subject to the life estate of her father.</p>

<p>Wills — construction of — trusts — powers in trust — executors and trustees — continuation of business — religious corporations — gift of income gift of principal — offset — Decedent Estate Law, § 17 — Personal Property Law, § 16 — Real Property Law, §§ 63, 137.</p> <p>A testator whose estate consisted solely of personal property gave to his executors in trust all the shares of the capital stock of a business corporation of which he was the sole owner, with direction to continue the business as they might deem expedient and conferred upon them the power to sell and dispose of the business in their discretion, and upon a sale of the business the testator’s widow was given the income from the value of the stock of the business, and before its sale she was given one-half of the profits earned by the stock and then, in addition, by a later clause of the will the trustees were given ample discretion to pay to the widow during her lifetime any amount from the corpus of the estate, for her proper support and maintenance. Upon the death of the widow, testator’s -stepdaughter became the beneficiary of the entire estate subject to certain charges with ultimate remainder of the entire estate to a certain religious corporation, of which testator had been a member. Held, that the trusts of the corporate stock for the widow and subsequently for the stepdaughter, the later provision for the widow and the gift over to the ultimate remainderman were clearly separate, distinct and independent of each other.</p> <p>The trust in the corporate stock, a portion only of testator’s estate, was limited upon the measuring lives of the widow and stepdaughter with a vested remainder in the religious corporation, and did not unlawfully suspend the power of álienation beyond the term provided by law.</p> <p>Even if the trust in the corporate stock were declared void the later provision for the widow would operate to provide amply and fully' as a separate provision for her support and maintenance, and created, upon all of testator’s estate not within said trust, a power in trust under section 137 of the Real Property Law, of which the executors are trustees, and the mere omission to name them “ trustees ” or to use formal words to clothe them with power as such, was not controlling.</p> <p>The will directed that while the business was being conducted the profits upon certain shares of the stock should be paid to certain employees, if in the employ of the business at testator’s death, and in the further event of their continued employment. Held, that such provisions were neither testamentary dispositions of the testator’s own property nor technical trusts, but mere directions or authorization to the executors respecting their conduct in the management of the business, either directly or through stock control. Such provisions created a gift of the profits of the trust property in payment of services rendered to the corporation, which ceased either upon the non-employment of the donees or a sale of the business, and finally upon the death of the surviving measuring life, and such provisions can have no other force or legal effect than a warrant to the executors to contract or to sanction contracts with employees on a profit-sharing basis up to a specified limit, and such provisions did not suspend or contribute to .the suspension of the absolute ownership of the stock even if they are considered to be technical trusts.</p> <p>No rule of law prohibits a testator from directing the continuation of his going business and making it a part of a trust estate, provided it is not used as the measure of the life of the trust.</p> <p>Certain shares of the stock which were not annexed to the trust and certain of the shares held in trust for the widow, held to pass upon her death to the trust of the residuum in favor of the stepdaughter.</p> <p>The profits from all of the above mentioned shares and the profits given to the employees who may surrender them under the terms of the will and any other income not passing directly to the beneficiary of a trust, or power in trust, will go under section 63 of the Real Property Law to the persons eventually entitled to the next eventual estate, hence there was no unlawful accumulation of income in violation of section 16 of the Personal Property Law.</p> <p>A gift to a maid servant brought into existence by the death of the widow sustained as a trust or annuity and the trustees directed to set aside a sufficient sum to produce such annuity, and upon the death of the annuitant the principal will pass to the ultimate remainderman.</p> <p>Gifts to the religious corporation of $150 per annum for a period of ten years and to its men’s club of $100 per annum for a period of five years sustained as gifts in the nature of an annuity or trust in favor of charity.</p> <p>A provision authorizing the trustees upon the expiration of the second life estate to pay the profits upon the stock' to the religious corporation being admittedly illegal will be cut off and not allowed to invalidate the other testamentary provisions.</p> <p>A clause preceding the gifts of the residuary estate which followed such illegal provision, to the effect that in the event of the sale or liquidation of the business corporation, whereby it ceases to be a going concern or ceased to do business, etc., eliminated from the will (1) because it is a part of the preceding void provision and (2) because it is an ulterior limitation without potency in expressing the intention of the testator.</p> <p>The gift of the income to the religious corporation is a gift of the principal vesting the absolute ownership in the donee, and the direct gift to said corporation brings it within section 17 of the Decedent Estate Law and limits the amount of the gift to charity to one-half of the estate less the debts; the corporation becomes a general legatee for the purpose of casting the expenses of administration on the next of kin, and as to the residuary estate the testator died intestate and it is vested in his next of kin, a niece, and in the widow under the Statute of Distributions, each taking one-half part thereof.</p> <p>A certain mortgage made by the widow to the testator held not to he an asset of his estate because it is offset by a bequest under the will.</p>

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

<p>Application for mandamus to compel the board of aider-men to make a ’reapportionment of the thirteenth senate district into assembly districts.</p>

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

Decision on demurrer interposed by plaintiff to defendant’s plea of justification of his acts in arresting and prosecuting the plaintiff for an assault committed upon him and for interfering with him in the discharge of his duties as a police officer.

<p>"Chapter 601, Laws of 1895, abolishing the office of police justice in the city of blew York and creating the office of city magistrate in place thereof, is not unconstitutional. .</p> <p>An injunction will not lie to restrain the. comptroller of the city from paying out the unexpended balance of the appropriation for the year 1895 for the bourts of Special Sessions to the new judges of the Court of Special Sessions and city magistrates created under said act.</p> <p>The clerk of the Court of Special Sessions in office at the time said act took effect cannot be injured by the payment of the salaries to the hew magistrates, as it would be no defense in a suit against the city for the' latter to allege that the fund was exhausted by said payments.</p> <p>An injunction should not be granted where the plaintiff’s right is doubtful and his legal remedy is adequate, and where the result would inevitably be to introduce confusion and impair ' the efficiency of the • administration of criminal law in a large community.</p>

<p>A majority stockholder is not bound to contribute any portion of his personal means in support of the corporation, nor is he precluded from insisting upon the enforcement of his rightful claims against it nor from acquiring and enforcing its obligations.</p> <p>The complaint in an action by minority stockholders to restrain the majority stockholders from proceeding in fraud of their rights must set forth the- unlawful acts of the defendants which disclose the alleged fraud. In the absence of such allegations, charges of conspiracy, fraudulent combination, evil intent, etc., are insufficient to make out a cause of action.</p>

Pbooeedin& to review the determination of the clerk of Albany county that the certificates of nomination of the Democratic Party Reform ■ Organization are void and of no effect.

<p>. Action by vendor to recover from purchaser amount allowed for payment of assessments.</p>

<p>. Action to recover moneys paid for taxes imposed on bank stock owned by plaintiff.</p>

<p>Contracts — carriers — express companies — sales — evidence ■—■ Personal Property Law, § 127(1).</p> <p>The general rule embodied in section 127 (1) of the Personal Property Law as amended in 1911, that in a contract to sell or sale there is a presumption that delivery to a carrier is delivery to the buyer, is by said statute subject to exceptions, if a contrary intent be shown.</p> <p>In an action to recover the value of several articles of food stuffs lost in transit, which, had been delivered by plaintiff to defendant for transportation and delivery to certain consignees by shipments in which no valuation was stated, the plaintiff gave proof of the receipt of orders from customers, the delivery of the parcels to defendant’s agent, his signature in the general express book of plaintiff, the failure to deliver and the reasonable value of the articles sold. Defendant offering no proof moved to dismiss the complaint for failure to prove a case, on the ground that the title to the goods on delivery to it, was vested in the consignees and that they were the proper parties to bring the action. Upon denying the motion, held, that the consignees having made no claim upon defendant’s failure to deliver the plaintiff had the right to bring the action.</p> <p>The rule invoked on defendant’s motion was not controlling as upon the proof the case was within the exceptions of said rule.</p> <p>A special contract in plaintiff’s receipt book limiting defendant’s liability in case of loss to fifty dollars was binding upon plaintiff although having failed to declare a value he submitted proof of the actual value of the goods lost, and his right of recovery could not exceed the contract limit on each shipment.</p>

Appeal by plaintiff from an order of the City Court of the city of New York refusing to strike out denials in the separate defenses of the amended answer and certain allegations therein and to make more definite and certain other allegations.

<p>A temporary injunction should not be granted in an action brought by a member of a co-operative life insurance company to enjoin the enforcement of assessments in excess of the amount named in the certificate of membership, where it appears that its constitution gives the directors of the company power to fix the amount of assessments; that such , excessive assessments were the result of a change of policy suggested by the superintendent of the insurance department, and that the plaintiff had paid similar assessments without objection. .</p>

<p>Accounting of a receiver of rents appointed in an action of foreclosure.</p>

<p>Action to vacate an assignment for the benefit of creditors.</p>

<p>Notice to the attorney-general of application for an order of reference of a . disputed claim against a corporation, made upon a stipulation between the claimant and the receiver of the corporation, is not essential to the validity of the order and the proceedings before the referee.</p>

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

Appeal by the landlord from an order of the Municipal Court of the city of New York, borough of Manhattan, seventh district, dismissing the petition and the proceedings upon the ground that the notice given to the tenant by the landlord to terminate his tenancy was insufficient.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, sixth district, entered in favor of the plaintiff.

Appeal by plaintiffs from a judgment of the City Court of the city of New York, dismissing their complaint at the close of their case.

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, sixth district, awarding plaintiff the sum of $180.50, and costs, for damages alleged to have been caused by the negligence of the defendant in carelessly allowing their coal truck to collide with plaintiff’s automobile.</p>

<p>Appeal by the plaintiff from a judgment entered in favor of the defendant in the Municipal Court of the city of New York, borough of Brooklyn, fifth district, on the 19th day of November, 1919.</p>

<p>¡Motion to restrain the board of police from printing "the names of candidates for state offices in any column upon the ■official ballot under the name or emblem of the Eew York State Democracy.</p>

<p>Summary proceedings— dispossession of tenant— Municipal Court of city of New York may entertain an equitable defense — landlord and tenant — lease — Code Civ. Pro. § 2244.</p> <p>In summary proceedings to dispossess a tenant the Municipal Court of the city of New York, under section 2244 of the Code of Civil Procedure, has ample power to entertain an “ equitable defense.”</p> <p>A few days after October 1,1918, when the renewal period of a lease for one year from October 1, 1916, had expired, a new lease prepared by the landlords which, though not requiring tenant to pay the water tax and giving him option to buy the premises, as did the old lease, provided: “ That the said tenant shall notify the said landlords one month before the expiration of the term, if he desires to renew the lease,” and until June, 1919, the landlords as well as the tenant acted as if the new lease corresponded in terms with the old. Held, that said provision created a covenant to renew which was binding upon the parties.</p> <p>On August 5, 1919, the tenant notified the landlords by letter that in accordance with the terms of the lease he elected to continue his tenancy for another year, beginning October 1, 1919. Ten days later the landlords notified the tenant that possession of the premises would be expected on October 1, 1919, and thereafter the tenant tendered the rent for said month of October, which the landlords refused to accept. SeZd, that the petition of the landlords in summary proceedings to dispossess the tenant was properly dismissed and the appeal from such determination will be affirmed.</p>

<p>Racing horses for stakes is not k lottery. ,</p>

<p>A railroad corporation has a dual relation; a public relation to the people of the state, and a private one to its stockholders.</p> <p>Its public obligation to run its cars and carry passengers transcends its obligation to its stockholders.</p> <p>If it cannot get labor at the price or conditions it offers, to perform this public duty, then it must offer such price and conditions as will get it. It may not stop its cars for any length of time to beat or coerce the price or conditions of labor down to those conditions it offers. .</p>

<p>Foreclosure — mortgages — default in payment of installments of principal and interest — evidence — judgments.</p> <p>A stipulation in a mortgage as to a default in the payment of installments of principal and interest is made to accelerate the time the principal debt shall become due, in case the interest is not promptly paid; such a stipulation has reference only to the debt the mortgagor has agreed to pay in the manner provided and his failure to comply therewith is not a default in the nature of a penalty or forfeiture.</p> <p>At the time of the conveyance to a holding company of two certain adjoining premises, each incumbered by a mortgage, containing the usual thirty days’ interest clause, there was also a purchase money second mortgage upon one of the properties, in and by which it was expressly agreed that should any default be made in the payment of the interest on the prior mortgage and the same remained unpaid and in arrears for ten days, etc., the amount secured by the mortgage and the accompanying bond should become due and payable at any time thereafter at the option of the owner or the holder of the mortgage. Neither of the parties to said conveyance assumed the prior mortgage nor agreed to pay the interest thereon. In an action to foreclose the second mortgage because of a default in the payment of the interest on the first mortgage evidence considered, and held, that under all the circumstances of the case the owner of the property, the holding company, was misled by the different dates fixed in the various mortgages for the payment of interest, and there was no wilful neglect on its part in not paying the interest on the first mortgage within the ten days of grace allowed in the second mortgage.</p> <p>And it not appearing that the plaintiff was in any way prejudiced by the default in the payment of interest on the first mortgage, judgment is directed for defendant relieving it of the forfeiture by reason of its default', on payment to plaintiff of the taxable costs, and, on failure to pay the same, judgment is directed for plaintiff, with costs.</p>

<p>The Home for Aged Men, in 'the town bf Colonie, county of Albany, is ah institution supported wholly or partly by charity within the meaning of section 3 of article 2 of the Constitution, as amended in 1895.</p> <p>Such amendment is not retroactive and does not deprive an inmate of such institution who gained a residence and’ voted in the district prior to January 1, 1895, of his right to vote therein.</p>

<p>Highway commissioners have no power to pledge the credit of the town for materials for the repair of highways and bridges, and the person . furnishing such material has no claim therefor upon the town notwitlv standing the existence of a local custom to buy such material1 upon credit.</p>

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

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

<p>Certiorari — when, motion to quash writ of, granted — receivers — street railways — contracts — public service commission.</p> <p>Where by the express terms of an order made by the public service commission for the first district on July 15,1919, authorizing the receiver of the New York Railways Company to charge two cents for transfers on its line, to continue in effect up to and including July 7, 1920, whatever contract rights the city of New York may have are excepted from the operation of said order, a motion to quash a writ of certiorari obtained by the city to review said order, and also an order made October 1, 1919, denying relator’s application for the reversal or modification of the order of July 15, 1919, will be granted.</p>

<p>A judge who settles, the form of judgment to be entered upon á referee’s report and grants an allowance is disqualified from taking any part in the appeal from such judgment.</p> <p>Disqualification of a judge cannot be waived by consent.</p>

Certoriaei to. review the action of the commissioner .of police and excise in removing the relator from office as a member of the police force of the city of Brooklyn.

<p>Appeal from order sustaining demurrer to answer,, with leave to amend.</p>

<p>. Where a contract for binding provides that the books shall be bound in a good quality of leather, proof that the leather used was good is sufficient to support a recovery.</p> <p>Opinions -of persons -not shown to. be judges of an article as to its quality are not entitled to as much credibility and weight as testimony of experienced persons. ' ■</p>

<p>Where the plaintiff in an action for rent swears positively that he never accepted a surrender of the premises, a motion to make the answer more definite and certain by specifying the date and consideration of the alleged surrender or for a bill of particulars thereof is properly denied.</p>

<p>Action to recover upon a check,</p>

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

<p>Prior to the making of an assignment by a partnership a note given to it by a third person was, at its request; negotiated by defendant, who guaranteed payment thereof. The note matured after the assignment was made and defendant was compelled to take it up. Held, that there being no present liability of the partnership upon the note at the time of the assignment, defendant could not set off the amount thereof in an action brought against her by the assignee to recover for goods sold and delivered to her by his assignors^</p>

<p>Foreclosure — mortgages — when claim for dower will be dismissed — pleading.</p> <p>Where the complaint in a foreclosure action alleges that the defendants, other than the mortgagor, have or claim to have some interest in or lien upon the said mortgaged premises “subject or subordinate to the lien” of the mortgage in suit, and the only answering defendant sets up a claim for dower which arose prior to the execution of the mortgage, such claim for dower constitutes neither a defense nor a counterclaim and will be dismissed and judgment rendered for the plaintiff.</p>

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

<p>Motion for an order directing the commissioner of health of the city of New York to record the date and place of petitioner’s birth.</p>

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

<p>Actions — negligence without state — when motion to revive action denied.</p> <p>An action to recover damages for causing the death of plaintiff’s husband by the alleged negligence of defendant, a resident of this state, while touring in his automobile in the state of New Hampshire, does not survive the death of the defendant, and a motion for an order to revive the action against his administrator will be denied, although such right of reviver exists under the laws of New Hampshire.</p>

<p>Appeal from judgment in favor of the plaintiff.</p> <p>Action upon- an order made to the John R. Anderson Co.-,, a New Jersey corporation doing business in New York. For further facts see 10 Misc. Rep. 497.</p>

<p>In.an action against several defendants as copartners upon a contract made by one of them in the name of the firm, where it appears that the pres-' ent copartnership was formed after the making of the contract, and that prior thereto a partnership existed between the defendant executing the contract and another person, a dismissal of the complaint against all the defendants is proper, as no judgment could be entered against such defendant individually.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon a verdict.</p> <p>Action for assault and false imprisonment.</p>

<p>Injunctions — when, will not be granted for violation of building restrictions — covenants.</p> <p>Plaintiff and defendants hold their respective lots subject to covenants that the property shall not be divided into lots less than forty feet wide, that only-one house shall be erected on such a lot and no part of the house shall stand less than fifteen feet from the street line. The veranda of plaintiff’s house extends to within thirteen feet of the street line. Plaintiff seeks to restrain the defendants from erecting three dwellings on a plot eighty feet in width. Held, that plaintiff having himself violated the building restrictions relied upon cannot restrain defendants from violating them, and the defendants are entitled to judgment.</p>

<p>■ Appeal from order directing the defendant-to furnish a bill of particulars.</p>

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

<p>Demurrer to complaint.</p>

<p>A motion to adjourn a trial "is one addressed to the discretion of the trial justice, and a denial of such motion and direction that the trial proceed during the absence of the defendant is not ground for reversal, unless it appears that the justice acted arbitrarily.</p>

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

<p>Action to set aside a' contract entered into by the aqueduct .commissioners, on the ground of waste. ■</p>

Motion by the plaintiff that the defendant be adjudged guilty of the crime of contempt of court, and punished accordingly. , The. offense charged is that he has refused to answer certain questions; put to him-by the grand jury now in session at this. . court:

<p>Bural cemetery associations, whose certificate of incorporation or by-laws do not exclude any person from the privilege on equal terms with others of - purchasing a. lot or of burial in its cemetery, may constitu-. tionally secure the condemnation of lands for cemetery purposes.</p> <p>1 The fact that no persons are thus excluded must • be stated in the petition.</p> <p>Such statement is jurisdictional, and an omission thereof cannot he supplied by amendment.</p>

Application to review the action of the Republican county committee of the county of Broome, amending the rules of the Republican party in Broome county so as to provide for the election of two members of the Republican county committee in each election district instead of one, as heretofore, and the action of the custodian of primary records of Broome county in providing for the election of two members of the Republican county committee in each election district.

<p>Stock Corporation Law, § 53 — provisions as to manner in which subscriptions to stock may be taken — contracts — statutes — corporations — subscriptions — options — specific performance ■—pleading.</p> <p>The language of section 53 of the Stock Corporation Law, which provides the manner in which subscriptions to stock may be taken upon the books of a corporation open for that purpose, while permissive, does not exclude other valid agreements to take said stock.</p> <p>But, under the mandatory requirement of said section, that at the time of subscription every subscriber whose subscription is payable in money shall pay in cash to the directors ten per cent of the amount subscribed by him and that no subscription shall be received or taken without such payment, no subscription is valid unless the required ten per cent is so paid.</p> <p>While a valid subscription to corporate stock involves an agreement binding upon both parties, either as provided by statute or under the common law, with a payment of ten per cent of the subscription in cash, the parties, in exceptional cases, may have so dealt with each other as to render it inequitable and legally wrong as against other stockholders or creditors to defeat a subscription not so made.</p> <p>An option given by a corporation to purchase its stock at par at any time within a year from the date of the option, accepted by the optionee without the payment in cash, as required by section 53 of the Stock Corporation Law, of ten per cent of the value of the stock covered by the option, does not constitute a valid subscription, and the corporation at any time, even after a purchase of a part of the stock covered by the option and a demand and tender for the remainder, may repudiate such a subscription.</p> <p>Specific performance of an option for stock given by a corporation and accepted by the optionee but not accompanied by the payment of the ten per cent required by section 53 of the Stock Corporation Law, will not be decreed.</p> <p>A demurrer will be sustained to a complaint which seeks specific performance of an option to purchase stock, although the option has been partially exercised by a purchase thereunder, and an acceptance of and tender for the remainder has been made, where the complaint shows that the provisions of section 53 of the Stock Corporation Law relating to subscriptions to stock requiring the payment of ten per cent in cash have not been complied with, that the stock has an ascertainable value and that the plaintiffs have an adequate remedy at law.</p>

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

Motion to vacate or modify injunction pendente lite. The plaintiffs are clothing manufacturers at Boehester, N. Y., and the defendants are an organization of clothing workers and officers and members thereof. The plaintiffs beside manufacturing clothing in their own factories let out work to contractors and others working in their own shops or homes.

<p>Motion to strike out allegations from the complaint.</p>

<p>Application for a voluntary dissolution of a corporation.</p>

<p>Motion to stay action.</p>

<p>Contracts — construction of — custom and usage — evidence — meaning of words ‘ ‘ extra heavy pipe ’ ’— fraud.</p> <p>Evidence of custom or usage of trade may not be resorted to or permitted to change the terms of a contract expressed in clear language.</p> <p>Claimant, in the performance of work in the installation of heating and domestic water supply mains at a state reformatory, put in iron pipe which, though having the pressure resistance called for by his contract with the state, was not “ extra heavy pipe” as required by the specifications. The state architect notified claimant that the pipe he was installing did not conform to the specifications and required him to install “ extra heavy pipe.” Claimant removed the pipe he had already put in and under the direction of the state architect installed pipe which substantially complied with the contract and upon completion of the work claimant filed a claim to recover for such work upon the theory that his contract did not require him to install the “ extra heavy pipe ” as ordered by the state architect. Held, that the claim should be dismissed upon the ground that the installation of the “ extra heavy pipe ” was what he had agreed and contracted to do, and evidence that in the usage and custom of the trade the words “extra heavy pipe ” in the contract did not mean anything, was incompetent.</p> <p>A stipulation in the contract that should any dispute arise respecting the true construction or meaning of the drawings or specifications or should any portion of the same be obscure or capable of more than one construction, the decision of the state architect should be final, was, in the absence of fraud or bad faith on his part, conclusive.</p>

<p>Damages — Barge canal — villages — change of grade of streets — jurisdiction of Court of Claims — awards ■—Village Law, § 159 — Laws of 1918, chap. 612.</p> <p>The statute (Laws of 1918, chap. 612) confers upon the Court of Claims jurisdiction to hear, audit and determine a claim for money paid hy an incorporated village to a resident owner for damages caused by a change in the grade of a street in front of his premises.</p> <p>The state, in building the Barge canal, raised the bridge over the Glens Falls feeder in the village of Hudson Falls two feet and eight inches so as to increase the clearance underneath the bridge, which connects a highway in the village. In consequence, the village had to raise the approaches to the bridge and change the grade of the highway leading thereto. Held, that as the village, under the Village Law (Laws of 1909, chap. 64, $ 159), was liable for all damages to abutting owners caused by a change of grade, it was entitled to an award for the several amounts of money paid by it to abutting owners as damages caused by the change of grade.</p>

<p>Claim of the town of New Lebanon against the state of New York for work done by the town upon a state highway under an agreement with the state highway department.</p>

<p>Claims — flooding of premises — death from pneumonia not attributable to flood.</p> <p>Claimant’s premises were flooded in consequence of an overflow of the Mohawk river and its tributaries occurring through the alleged negligence of the state arising out of the construction and maintenance of the Barge canal. Upon the hearing of a claim for causing the death of claimant’s five months’ old daughter, alleged to have been caused by the flood, there was no evidence which would justify a finding that the child contracted bronchitis by reason of any condition of the premises so flooded, and although there was some evidence that the bronchitis so debilitated her that she contracted pneumonia there was no evidence to justify a finding that the pneumonia she thus contracted and from which she died was the direct result of the flooding of her parents’ premises, and the evidence falling short of connecting her illness with such flooding, the claim should be dismissed.</p>

<p>Claims — amendment increasing claim disallowed — damages — evidence—Code Civ. Pro. § 264, as amended by Laws of 1919, chap. 115.</p> <p>Where upon the hearing of a claim for damages for the destruction of certain leaf tobacco in claimant’s cellar, alleged to have been caused by an overflow of the Mohawk river and its tributaries, proof is made that the tobacco was of much greater value than that stated in the claim as filed, the denial of a motion to amend so as to materially increase the amount of the claim is a proper exercise of discretion under section 264 of the Code of Civil Procedure, as amended by chapter 115 of the Laws of 1919, and the claim will be allowed at the amount for which it was filed.</p>

<p>Benevolent associations — failure to designate a beneficiary — unreasonable amendment to constitution not binding—certificates — words ‘ ‘ heirs at law ’ ’ — appeal.</p> <p>The constitution of the “ Cigar Makers Union of America ” at the time plaintiff’s intestate became one of its members, provided that in case any member should fail to designate a beneficiary by will or otherwise to whom the amount of her certificate should be paid, the amount thereof should be paid to the “heirs at law.” The constitution as thereafter amended and in force at the death of said member provided that if there was no designation of a beneficiary by the member and none of the persons mentioned in the certificate were living, then all right and claim of every person to such benefit should wholly cease and determine, thus eliminating the provision that the benefit should go to the “ heirs at law ” of a deceased member. Plaintiff’s intestate at the time of her death, about two years after the amended constitution went into effect, was a member of the union in good standing, but she had made no written designation as to who her beneficiary should be, apparently content that the benefit should go to her “ heirs at law.” Meld, that the amendment to the constitution eliminating “heirs at law” was unreasonable and that a judgment in favor of the administrator of the deceased member, based upon an offer of judgment by defendant, should be reversed and a new trial ordered.</p>

<p>Constitutional law — constitutionality of § 30-P of the Liquor Tax Law, as amended in 1918 — local option — indictments — statutes — when demurrer overruled.</p> <p>Section 30-P of the Liquor Tax Law, as amended in 1918, declaring unlawful the possession of liquor where trafficking therein is prohibited as a result of a vote on local option questions, is constitutional though it does not discriminate between liquor acquired before or after the statute was enacted.</p> <p>An indictment which, after alleging that as the result of the vote duly taken in a city between specified dates, the possession of liquors in said city became unlawful, charges that on or about a certain date thereafter defendant, in violation of section 30-P of the Liquor Tax Law, as amended in 1918, did knowingly and unlawfully have liquors in his possession in that city, such possession not being permitted under any exceptions specified in the statute, is good, and a demurrer thereto on the ground that the statute is void as an attempt to take or destroy private property without compensation, will be overruled.</p>

<p>Foreclosure — mechanic’s lien — Municipal Court of city of New York — costs — Code Civ. Pro. § 3228(5).</p> <p>Where the plaintiff in an action brought in the Supreme Court to foreclose a mechanic’s lien, though not entitled to a judgment of foreclosure, recovers a personal judgment for less than $500 upon a claim which might have been sued on in the Municipal Court of the city of New York, the plaintiff is not entitled to taxable costs, but a defendant who had no voice in the selection of the forum, who establishes a lien for upwards of $400, is entitled to taxable costs in addition to its lien, section 3228(5) of the Code of Civil Procedure having no application.</p>

<p>Injunctions — when motion for, granted — municipal corporations — statutes — automobile bus lines — carriers — ‘ ‘ Home Rule Act” (General City Law, art. 2-a)—Public Service Commissions Law, § 53 — Transportation Corporations Law, §§ 24, 25, 26 — Greater New York Charter, § 74.</p> <p>Municipalities, unless expressly authorized by statute, may not lawfully operate railroads or bus lines or public utilities of any kind.</p> <p>Bus lines, whether maintained and operated by the city of Hew York or by private individuals or corporations, come within the provisions of sections 24, 25 and 26 of the Transportation Corporations Law which bring the owners and operators of a bus line within the definition of the term “ common carriers ” as used in that statute, and also come within section ’53 of the Public Service Commissions Law, which requires the obtaining of a certificate of public convenience and necessity, etc.</p> <p>While the language of the “Home Rule Act” (General City Law, art. 2-a) is somewhat broad, it does not give any specific authority to the city of Hew York to become a common carrier, and limitations upon the powers of municipalities, existing either under special or' general laws, still continue notwithstanding the said “Home Rule Act.”</p> <p>Where plaintiff,’ the owner and operator of a line of surface cars in the city of New York, prays for an injunction to restrain the operation of certain automobile bus lines that are now being maintained in said city by permission of its commissioner of plant and structures by authority of its board of estimate and running virtually parallel with certain of the car lines operated by plaintiff, and the defendant admits that no certificate of public convenience has been obtained from the public service commission, that the right to operate said bus lines was not granted after a public hearing, and that none of the other requirements of the Public Service Commissions Law and of section 74 of the Greater New York Charter has been followed, a motion for an injunction will be granted.</p>

<p>Testatrix fexecuted a will by which a life estate in real property was devised to her husband in trust for his benefit and that of their daughter, with remainder over to the daughter; and six days thereafter she executed another will by which the entire estate was devised to him absolutely, he being named as sole executor in both instruments. He caused the first will to be probated, held both wills continuously for upwards of, nineteen years, recognized the daughter’s interest in the property and procured her to join with him in a mortgage thereon. On his death, both wills came into possession of a third wife, who propounded the last will for probate. Held, that, by his acts during life, the husband . and executor surrendered and released such estate of inheritance as purported to have been given by the last dated will, and elected, instead thereof, to accept, and did, in fact, accept a lesser estate under the other instrument, and was thereby estopped, and the proponent, who derives .her interest through and under him, is likewise, estopped from setting up and proving the later dated paper. ' Proof that testatrix was asked if she requested the witnesses to sign and replied by an affirmative sign is not sufficient to prove such request,, where it appears that she was under the influence of opium at the time.</p>

<p>Ejectment — to determine claims to certain beach land — res adjudicata — actions — title ■— pleading.</p> <p>In an action by one claiming the fee, to determine his claim to certain beach land in the town of Oyster Bay, exclusive of a certain strip or parcel thereof, the title to which was involved in an action of ejectment previously brought by the town against plaintiff herein, defendant, after a denial of plaintiff’s ownership, pleaded as a defense the adjudication made in the ejectment suit, and the reply raised an issue as to the defense, plaintiff contending that said adjudication related only and was confined to the strip expressly reserved and excluded from the present action. Upon a trial of the issue of res adjwdicata in advance of a trial of the other issue, held, that it appearing from an examination of the judgment roll in the ejectment suit that on the trial of that action the question now before the court was litigated and determined in favor of defendant herein, judgment should be directed for it.</p>

Application lor a peremptory .writ of mandamus directing the restoration of relator to the position of deputy tax commissioner.,

Appeal by tenant from a final order of the Municipal Court of the city of New York, borough of Manhattan, seventh district, awarding possession of the premises to the landlord, upon the direction of a verdict by the court.

Appeal by the tenant from a final order of the Municipal Court of the city of New York, borough of Manhattan, seventh district, in favor of the landlord in a summary proceeding to remove the tenant after the alleged expiration of the tenancy.

<p>Demurrer to complaint.</p>

<p>Evidence — inadmissibility of parol evidence to vary writing — lease — rules.</p> <p>Where under a written lease complete in all its terms the rent is payable at the end of the first year, parol evidence that at the malting of the lease it was agreed that the rent should be payable in advance and that the first month’s rent was so paid is inadmissible under the rule excluding oral evidence to vary the terms of a written instrument.</p>

<p>To. entitle a party to maintain ¡ejectment Ms possession need not be such as would, by lapse of time, ripen into .adverse possession or the pre- - sumption of a grant. ■</p> <p>The actual going upon a piece of land of moderate size, which for natural reasons could not be fenced, putting stone monuments-around it and bringing lumber upon it to build, is, in itself, the taking of full- posses- , . sion of it, which.will authorize an action of ejectment against.a subse- .. quent intruder.</p>

Appeal by landlord from a final order in a summary proceeding, in the Municipal Court of the city of New York, borough of Manhattan, ninth district, awarding the possession of the demised premises to the tenant.

<p>Lease — construction of — provisions of — when may be terminated— landord and tenant.</p> <p>A provision in a lease that it may be terminated by giving the tenant a ten days’ notice to quit, will not be so construed as to require that said notice, to be effectual, should fix the end of a calendar month as the surrender day.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, in favor of the plaintiffs, entered on the verdict of a jury directed by the court.

<p>The law casts upon the county clerk the duty oí combining allied, nominations, and thereby making up the official tickets and ballots from the certificates of nominations.</p> <p>Objections to the regularity of the official ballot as made up by the county clerk must be taken before election, and cannot be taken after the ballots have been used by the voters in order to affect the count.</p> <p>The fact that the column of a local organization has been filled out with the state nominees of a party of similar political faith or principles does not make the ballot a marked "one.</p>

Motion by plaintiff for an order directing the clerk of the Municipal Court of the city of New York to file a notice of appeal nunc pro tunc.

<p>Wills — construction of — trusts — residuary estates — remainders — beneficial interests — right of representation — meaning of word “ issue.”</p> <p>In an action by testamentary trustees it was found as facts that, upon the death of their testator, each of his four surviving brothers, as residuary legatees, became entitled to an indefeasible estate in remainder in an undivided one-fourth of each of certain trust funds created by the will; that the respective remainders were descendible, devisable and alienable, and that the part of the residuary estate which remained after providing for and setting up said trusts, passed to and vested indefensibly in the residuary legatees and devisees, under the residuary clause. Under the will of one of said brothers certain money legacies were given to each of his seven children and the residuary estate to his widow, and in ease she predeceased him he gave it to his two sons in trust to divide into shares with direction for the division of the shares of each of his daughters among her surviving issue, and his will further directed that in ease of the death of any of his daughters without issue the trustee should pay the fund for her benefit to such person or persons in such proportions, in such manner and for such estates as such daughter should, by her will or by any instrument in the nature of a will, executed by her in the presence of three witnesses, direct and appoint, and, in default of such appointment, to her surviving brothers and sisters and to the issue of any deceased brother or sister by right of representation. Held, that as the brother who died was entitled to a one-fourth interest in the residuary estate of his deceased brother, each of his children was entitled to a beneficial interest in one-seventh of that one-quarter interest, with power to appoint said share by will.</p> <p>One of said children thereafter died, leaving a last will by which she made an unsuccessful attempt to exercise her power to dispose of the one-twenty-eighth interest in the estate of her deceased uncle. Held, that said interest passed under and was distributable under the will of her father among her surviving brothers and sisters and the issue of any deceased brother or sister by right of representation, interpreting the word “ issue ” as meaning living descendants in the nearest degree to the ancestor.</p>

<p>Gebtiobabi to review assessment upon the property of the relator. ■ • . ■</p>

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

<p>Appeal from judgment dismissing the complaint, entered upon the report of a referee.</p>

<p>Motion by defendant to set aside the verdict directed by the court in favor of plaintiff, and for a new trial.</p>

■Appeal from judgment in favor of the plaintiff, entered upon; a verdict, and from order, denying motion for a iicav trial., ' ' ■ , ■

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

<p>Alienation of affections — action for — husband and wife — marriage — judgments.</p> <p>Where after the commencement and before the trial of an action for alienation of affections, brought by a wife against the parents of her husband, the defendants obtained a judgment annulling the marriage, a judgment entered in the present action for defendants by direction of the court on the ground that the judgment of annulment was a bar will be reversed and a new trial granted.</p>

<p>It is the duty of a motorman, on seeing a horse car in front of him, to' maintain such a distance therefrom, or to so reduce the speed of his own car, that hexcould stop it in time to prevent a collision. ■</p> <p>Where the complaint claims 'damages for prevention from attending to . business, apd there is evidence as to the scope of the plaintiff’s share in the work and as to the amount.usually paid to persons performing such services, the jury may make an allowance for the value of his time ' lost.. '. •</p> <p>Where the injury caused a fracture of a. rib, which developed a hloody tumor and pleurisy, resulting in adhesion of the lung to the wall of the ■ chest, a verdict for $3,200.is not excessive.</p>

<p>Motions to set aside verdicts.</p>

<p>Plaintiff, who was fifty-eight years old, Waited until a street car had passed her abotit 141 feet, and then, after looking both Ways, attempted to cross the street. When upon the further track, about twenty-two feet from where she left the sidewalk, she was struck by a trolley car which was driven'at a rate of about fifteen miles ah hour, and which could not be stopped under seventy feet from the place- of the accident. Held, that it could not be said, as matter of law,, that the motorman was not negligent or that plaintiff was guilty of contributory negligence; but that those questions were for the jury. .</p>

/ Action to recover damages for the loss of the services of' plaintiff’s wife,' who' was injured while a passenger upon One of the defendant’s cars on Third avenue, in the city of Brooklyn, in the afternoon of September 16, 1892. The jury rendered a.verdict for $10,000.

<p>On an issue as to whether defendant agreed to pay fdr a mortgage which, was assigned "to her, evidence of statements made by her to others to-the eSect that she intended to pay plaintiff her mortgage, and that she wanted her lawyer to settle and supposed he-would pay the money, is-competent as admissions tending to sustain plaintiffs contention of a. promise to pay.</p>

<p>Appeal'from order and interlocutory judgment sustaining ■demurrer to the complaint.</p>

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

<p>Appeals from judgments dismissing the complaint.</p>

<p>In an action for extra work performed under a building contract, the fact that the bill for extra work was not presented until the contractor had received the final payment under the contract does not require the appellate court to hold that the denial of the owner is entitled to more weight than the affirmative statement of the contractor.</p> <p>Where the answer in an action upon a building contract does not allege that there was a dispute .as to value, or an offer by defendant or refusal by plaintiff to submit such dispute to arbitration in pursuance to the -terms of the contract, the plaintiff is not required to produce a certifl-</p> <p>- cate of valuation or show that-defendant refused to carry out the agreement to arbitrate, or' that the appraisers unreasonably refused a valuation.</p> <p>Where the architect has given a certificate that the building is finished, and - ' by -the contract he could not determine the value of the extra work, the contractor is not bound to -furnish any other certificate in order ,to ; recover for the extra work.</p>

Appeal by the defendants from a judgment of the City Court of the city of New York, entered in favor of the plaintiff after a trial before the court and jury.

Appeal by. plaintiff from an order of the City Court of the city of New York, denying plaintiff’s motion for an order setting aside a judgment dismissing the plaintiff’s complaint and denying a motion for a new trial.

Hearing upon certiorari to review an assessment for taxation on shares of stock of relator, a national hank, for the year 1919.

<p>Motion by the defendant for a re-taxation of costs.</p>

Motion by defendant for judgment on the pleadings, consisting of complaint, answer and demurrer to separate defense of answer.

<p>Negligence — when action for, not maintainable in this state — contracts — railroads — damages — verdict.</p> <p>Where in an administrator’s action to recover damages for the death of his intestate, an employee of the defendant railroad company, alleged to have been caused by the negligence .of another of its employees, it appears that the death occurred and all the services of the intestate were rendered to the defendant in another state where the contract of employment was made and to be performed and no service was contemplated here, the exclusive remedy of the next of kin is under the “ Workman’s Compensation Act ” of the other state, there being no written disclaimer thereunder.</p> <p>Verdict in favor of plaintiff set aside and the complaint dismissed on the ground that the action was not maintainable in this state.</p>

<p>Injunctions — to restrain the maintenance and operation of an elevated railroad — deeds — easements — when plaintiff entitled to recover full fee and rental damages.</p> <p>Where in an action for an injunction to restrain .the maintenance and operation of an elevated railroad in a street in front of plaintiff’s premises in the borough of Brooklyn, New York, or in lieu thereof for damages by reason of the construction and operation of said railroad, it appears that the plaintiff, who at the commencement of the action was the owner of the fee of the street in front of said premises to the center line thereof, by a deed of conveyance of said premises thereafter made, reserved the fee of the street as well as the easements of light, air and access, she is entitled to recover full fee and rental damages, and in estimating the fee damage, noise, vibration, loss of privacy and unsightliness of structure may be considered.</p>

<p>Service upon one who was known to be" the president of a corporation, but who had, in fact, previously resigned his office, and at the time of service had no connection with the company, is not service upon such corporation.</p>

<p>Fraud in the procurement of the note in suit is not a defense, unless the holder thereof was a party to the fraud.</p> <p>Fraud is not predicable upon a mere opinion of ‘the payee of a note that the payment thereof would induce the holder to forbear pressing for payment of the balance of his claim, in part payment for which the note was given.</p>

<p>Actions—pleading — trial — when plaintiff entitled to a verdict.</p> <p>A plaintiff may not be turned out of court because his ease is a novel one.</p> <p>Where the complaint in an action for damages in causing plaintiff’s arrest and prosecution on a charge of crime states a good cause of action, and the facts as the jury must have found them are as follows: The plaintiff and defendant had been friends for years when the defendant sent certain goods to the plaintiff’s place of business, which the defendant asked the plaintiff to keep for him; the defendant told the plaintiff they were his goods though in fact they were not, for he and others had stolen them; the plaintiff did not know they were stolen and kept the goods some days, when the defendant removed them; later the plaintiff was arrested, charged with the theft of the goods and with the crime of having criminally received them; the defendant concealed from the plaintiff the fact that the goods were stolen; the plaintiff’s arrest and prosecution were brought about solely by reason of his possession of the goods, as stated, the plaintiff is entitled to a verdict.</p> <p>The defendant, upon his motion to set aside the verdict in plaintiff’s favor and for a new trial, cannot be permitted to urge grounds for granting the motion which, had they been raised at the trial, might have been obviated by proof or amendment.</p>

<p>Eiror in'the admission of books of account, where no proper foundation was Bid, is harmless where the. defendant admitted the rendition-of the . services sued for and the court charged that the. books were not evidence of nonpayment. - , •</p>

<p>Appeal' from judgment dismissing the complaint. -</p>

<p>Insurance (life)—policy of — when wife’s interest cannot be divested — assignments — pleading — when motion for judgment on the pleadings granted.</p> <p>Where a husband insures his life for the benefit of his wife her interest in the policy cannot be divested without her consent.</p> <p>Where such a policy has been assigned as collateral security and the debt is paid and the policy returned prior to any breach of the contract, the title to the policy again vests in the assignor.</p> <p>Where in a controversy between plaintiff, the beneficiary named in two life insurance policies upon the life of her husband, and his administrator, the facts show a valid reassignment to the assignors after payment of the debt to secure which the original assignments were given, and the only denials in the answer of the administrator, the insurance company not contesting, are of the conclusions contained in the complaint as to the legal effect of the transactions with the insurance company, plaintiff’s motion for judgment on the pleadings will be granted, on the ground that such denials raise no issue.</p>

<p>At the intersection of streets drivers, of vehicles and street cars have equal rights, and both are required, to exercisé their-respective rights in a- . careful and'prudent manner. . ' *</p> <p>It is not contributory negligence, as'matter of law, for the driver of a . ■ vehicle, who is within five yards of a street railroad track," to attempt to- : cross it-.when the nearest car. to him is 600 feet away.</p>

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

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

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

<p>Action brought by state commissioner of excise for the collection of the amount of taxes on receipt of sales of liquor made at premises No. 850-852 Broadway, borough of Brooklyn, New York, under certificate issued to defendant.</p>

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

<p>Verdict — when should not he disturbed — when motion to set aside denied — trial — negligence — ships and shipping — evidence.</p> <p>A verdict should not be disturbed by the trial court unless clearly against the weight of evidence or contrary to law.</p> <p>Upon the trial of an action for causing the death of plaintiff’s intestate, the alleged negligence of the defendant was confined to the repair of a certain steam pipe connected with the boiler of a boat, which had been leased to or chartered by the defendant shipbuilding corporation from the other defendant, a steamboat company, to transport employees of the shipbuilding corporation to and from their work, it was admitted that shortly before the blowing out of the steam pipe, by reason of which plaintiff’s intestate met his death, the pipe had been repaired by the employees of the shipbuilding company at the request of the steamboat company, but both defendants sharply disputed the method and manner of the repairs to the boiler and its appurtenances, and their condition before and after the repairs, as well as the responsibility and liability for the explosion. Held, that the jury having found, as between the defendants, that the shipbuilding company, the employer of plaintiff’s intestate, whose men had actually made the repairs, alone was liable, it could not be said that a verdict in favor of the steamboat company was clearly against the weight of evidence and a motion to set aside the verdict and for a new trial for that reason will be denied on the ground that it would be an attempt to substitute the judgment of the court for that of the jury.</p> <p>The shipbuilding company pleaded and throughout the trial contended that the only claim that plaintiff might make against it was under and pursuant to the Workmen’s Compensation Act. Upon denying a motion to set aside the verdict in favor of plaintiff against the shipbuilding company, held, that to say that the death of plaintiff’s intestate arose out of and in the course of his employment and within the precincts of his then or theretofore employer, would seem to be extending the compass of said statute to even a greater degree than any case brought to the notice of the court and that the burden of establishing a precedent or making new law was upon the defeated party.</p>

<p>Where the contract for building a well does not require that the well when completed should supply any given number"of gallons per minute, it is immaterial to a recovery for the work whether or not such Well was useful to defendant or fit for the purpose of its intended use.</p> <p>'An objection that the contractor did not properly cover the-well is not a defense where payment was not refused on that account, blit because the well was. entirely unfit for use.-</p>

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

<p>Petition to be admitted to become a citizen of the United States of America.</p>

<p>Plaintiff purchased a machine of the. defendant, the title to remain in the latter until fully paid for, hut "before frill payment was made it was-transferred, with the consent of defendant’s agent,.to another person. Thereafter, upon failure of further payments, defendant demanded the return of thp machine, and, not receiving it, caused plaintiff’s arrest ' and imprisonment for eight days. In ah action for false im-pi-isonment, held, that such arrest was unlawful and was without probable cause and was malicious; that defendant should have sought redress from ' the holder of the machine. ’</p> <p>-Advice of counsel'is .no defense, unless shown to have been given after' a full and fair statement of the facts., ' ■</p>

<p>No recovery can be had in an action for personal injuries where -the plaintiff has been guilty of contributory negligence.,</p>

<p>Appeal from judgment in favor of the plaintiff, entered on the decision of the court without a jury.</p>

<p>Habeas corpus — criminal law — commutation of sentence — Penal Law, § 2193 — Prison Law, § 250.</p> <p>Relator, after having been detained in a city jail twenty-one days on a charge of petit larceny, pleaded guilty, and was sentenced to imprisonment in the county jail for a term of sixty days, his commitment thereto being dated March 20, 1920. He earned and pursuant to section 250 of the Prison Law has been allowed a commutation of ten days. Upon habeas corpus to be discharged he urged that under section 2193 of the Penal Law, as amended in 1919, he should be credited, in diminution of his term, with the time spent in the city jail, which by indorsement on the back of the commitment had been certified to by the city magistrate. Meld, that said section 2193 of the Penal Law, as amended, did not apply, and that relator should be remanded to the county jail to serve out his sentence.</p>

<p>Appeal from judgment in favor of the plaintiffs, entered upon a. verdict directed by ,the court.</p>

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

<p>Where a husband and wife live together and the wife keeps boarders in the house, the husband is .entitled to the board money, unless a special ' agreement between the husband and wife allowing her to have it for her sole' property is shown.</p>

<p>Aeeeal from judgment in favor of the plaintiff, entered -upon verdict directed by the court.</p>

<p>Civil Service Law, § 22 — what is not a “position” within the meaning of — municipal corporations — mandamus — statutes — Second Class Cities Law, § 94.</p> <p>The office of superintendent of water works of the city of Binghamton is not a “ position ” within the meaning of section 22 of the Civil Service Law, and the power conferred by section 94 of the Second Class Cities Law upon the commissioner of public works in said city to appoint one to such office to hold during the pleasure of the commissioner is not limited by said section of the Civil Service Law.</p>

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

<p>Where the master provides a competent foreman and assistant foreman and the proper and usual appliances, he has performed, all that the law requires and is not liable for injuries to the servants caused by negligence of the foremen in conducting- the progress of the work, in the absence of personal participation therein.</p>

This action is brought to compel the defendant specifically to perform a contract for the purchase of property situated at the southwest corner of Eighty-seventh street and Madison avenue, New York city. The main defense is that the title tendered is unmarketable by reason of the invalid execution of a power of sale contained in the will of Francis Price.

<p>Action to compel the removal of a dam, and for damages.</p>

<p>City Court of Utica — jurisdiction — indictments — criminal law — misdemeanors — grand jury — Laws of 1889, chap. 154, § 4.</p> <p>Under the provision of section 4 of chapter 154 of the Laws of 1889, vesting in the City Court of Utica, in the first instance, exclusive jurisdiction to try and determine practically all complaints for misdemeanors committed within said city, which declares that said section shall not he construed to abridge the powers of any grand jury in the county of Oneida to find any indictment for a misdemeanor committed in said city, such a grand jury has jurisdiction to indict- one charged with having committed adultery in said city.</p>

<p>Motion to continue injunction.</p>

<p>Surrogates’ Courts — jurisdiction — when motion to strike out . objections denied — accounting — executors and administrators — pleading — evidence — estoppel — Code Civ. Pro. § 2510.</p> <p>Section 2510 of the Code of Civil Procedure has broadened and not restricted the equitable powers of the Surrogate’s Court theretofore existing under section 2472-a of said Code prior to the revision of chapter 18, and the intent of the framers of said section 2510 was that the Surrogate’s Court should have sufficient equitable jurisdiction in matters pending before it of which it had statutory jurisdiction to enable it to fully determine a controversy without suspending consideration in case an equitable question arose, until an action might be brought in the Supreme Court for equitable relief.</p> <p>Upon a motion to strike out objections to certain items in the accounts of executrices of payments made it was contended that the objections might not be interposed or considered in the face of alleged ratification of said items in written instruments which, the moving affidavits alleged had been executed by the contestant; that the court had no jurisdiction to inquire into the circumstances attending the execution and delivery of said written instruments; that until the ratifications were set aside by the Supreme Court, the Surrogate’s Court was absolutely bound to give them effect, and that if upon their face they appeared to be ratifications of the payments objected to, the contestants were estopped from questioning said payment and their objections should be dismissed. Upon denying the motion to strike out the objections, held, that the court, under section 2510 of the Code of Civil Procedure, had sufficient equitable jurisdiction to try and determine all questions arising between any or all of the parties, and to grant relief accordingly.</p> <p>The accounts and the objections filed thereto constitute the pleadings, and if and when the alleged ratifications not referred to in the pleadings are offered in evidence, their effect will receive consideration, and whether an estoppel was created by their delivery will be before the court for decision.</p> <p>Any delay which might result if voluminous evidence was taken before any judicial determination as to the effect of the written instruments in question may be avoided if the court or referee will reach the conclusion as to their effect before proceeding with a lengthy examination as to the items objected to which cannot be summarily disposed of on the present motion.</p>

<p>Transfer tax — joint ownership — savings bank accounts — mortgages — appeal.</p> <p>A certain savings bank account in form in the name of decedent in trust for her sister, though no trust of any kind was intended, certain savings bank accounts in their joint names, also certain mortgages made and assigned to them prior to May 20, 1915, and a mortgage certificate, held to be subject to a transfer tax only to the extent of one-half of the moneys represented by them, because the other half of such moneys was contributed by the sister and did not pass to her by reason of the death of decedent.</p> <p>The question whether railway bonds are subject to a transfer tax may not be raised for the first time on appeal from an order assessing the tax.</p>

<p>Transfer tax — what not subject to — separation agreement — trusts — remainders — decedents’ estates.</p> <p>Decedent, long prior to his death, executed a certain agreement and as part consideration thereof created a trust fund for the support and maintenance of his wife, but reserved to himself a power of appointment of the remainder of the trust fund conditioned upon his son attaining thirty years of age and upon decedent dying before his wife. Decedent was survived by his wife and his son who at his father’s death was forty-three years of age. Held, that the son took the remainder in the trust fund under the separation agreement, which was made for a valuable consideration; that as said remainder interest was not created in contemplation of the death of decedent and not to take effect in possession and enjoyment at his death it was not subject to a transfer tax.</p>

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

<p>Proceedings upon the judicial settlement of the accounts of an executor.</p>

<p>Wills — construction of — trusts — substituted trustee — executors and administrators.</p> <p>A will authorized the trustees “ in their absolute discretion ” to invest one-third of the corpus of the trust in a business for the son’s benefit “if at any time after my said son shall arrive at the age of twenty-one years he shall show a disposition to go into business. * * * ” Held, that the son, now twenty years of age, manifesting no disposition or desire to go into business on attaining his majority and the substituted trustee not having been asked to exercise the power, an application for the construction of such clause will not be entertained.</p> <p>The will authorized the executors and trustees and the survivor of them “(a) To invest and reinvest the same in bonds and first mortgages, and in such other legal securities as in their judgment shall be safe and advisable, and I hereby authorize my said executors and trustees hereinafter named, or such of them as may qualify, and the survivor of them, to retain in my estate any shares, stocks, bonds or other securities whatsoever whereof I may be possessed, or to which I may be entitled at the time of my death, if they deem it for the best interest of my estate to do so, without any liability on their part in case of any loss or depreciation thereof.” The will designated a certain trust company to act as executor or trustee in the event that the other two named executors and trustees renounced or were removed and conferred upon said trust company all powers conferred upon the individual trustees. The trustees named in the will are dead. Held, that the substituted trustee, another trust company, could avail itself of the above quoted clause of the will, and a contention that it could not, because the trustees named in the will were given purely personal discretion, was untenable.</p>

<p>Transfer tax — when order fixing, modified — wills — vested remainders.</p> <p>After a bequest of the income of one-third of the residuary estate to testator’s daughter E. the will provided: “On the death of my said daughter, I give, devise and bequeath said equal one-third part so devised and bequeathed to (two sons) or such part or portion thereof as may remain in the hands of my said trustees at the time of the death of said E., to ” (one of said sons and another daughter) “ share and share alike or to the heirs at law of the said ” (last named son and daughter), should they or either of them die previous to the death of E. Held, that it was not the intention of testator to except E. when referring to the heirs of his two other children and that there was no possibility that the remainder after E.’s death would vest in a person of the five per cent class.</p> <p>Tie order fixing the transfer tax modified by assessing the remainder, after the life estate of E., for the benefit of persons in the one per cent class.</p>

<p>Wills — construction of — intention of testator — trusts — meaning of word ‘‘ issue.”</p> <p>The general rule of law in this state still is, that the word “issue” in a will includes all descendants and distribution is to be made per capita.</p> <p>Testator, by his will, divided his estate into six equal separate trust funds, one of which was given in trust to the executors to collect and receive the income and apply the same to the use of a daughter for life and at her death to pay over and assign said one-sixth share to her issue share and share alike, but in the event of her dying without lawful issue he directed that said share should go “to increase the shares of my other children and their legal representatives.” Held, that testator’s intention was to limit “issue” to the child or children of said daughter; that the corpus of the trust for her should go to her only child by representation.</p>

<p>Discovery proceedings.</p>

<p>Citation — when motion to set aside service of, granted — publication—"Soldiers and Sailors’ Civil Belief Act”—wills — affidavits.</p> <p>The validity of an order for publication of a citation must be judged solely upon the statements in the affidavit or petition upon which the order was granted.</p> <p>Although letters exchanged between one entitled to be cited upon a probate proceeding and his attorney and the proponent of the will were written either to or from San Francisco, Cal., the petition for an order for the publication of the citation upon him falsely stated that he resided at Los Angeles, Cal., and the citation was mailed to that address. Four days after the citation was returnable the proponent filed an affidavit under the “ Soldiers and Sailors’ Civil Relief Act ” which set forth petitioner’s whereabouts as at San Francisco. Held, that the failure to serve the citation at San Francisco was not a mere irregularity but was substantial, and a motion to set aside the service of the citation as irregular and void will be granted.</p>

<p>Negligence — who entitled to distributive share of proceeds of judgment for negligence resulting in death — meaning of words “next of kin’’—Code Civ. Pro. §§ 1870, 1903(1) — Decedent Estate Law, § 98.</p> <p>Under section 1870 of the Code of Civil Procedure and section 98 of the Decedent Estate Law, a grandchild is one of the “ next of kin ” of her grandfather within the meaning of section 1903(1) of said Code, and is entitled to her distributive share of the proceeds of a judgment recovered in an action for negligence resulting in the death of the grandfather.</p>

<p>Proceeding upon the probate of a will.</p>

<p>Appeal from judgment of the City, Court, General Term, affirming judgment on verdict and order denying new trial. The- opinion gives the case. ' .'</p>

<p>Alimony — when complaint dismissed — judgments — actions.</p> <p>Where a judgment directing the payment of alimony has been reversed, the complaint in an action thereafter brought upon checks for such alimony must be dismissed but without prejudice to a new action in case the judgment he reinstated.</p>

<p>Demurrer to defenses contained in answer.</p>

<p>Arrest — when motion to vacate order of, denied — equitable actions — false representations — pleading — negotiable instruments.</p> <p>The fact that one brings an action on the equity side of the court because he wishes to obtain additional relief of an equitable character is no sufficient reason why he should be refused am order of arrest to which he is entitled by virtue of the common law element of his claim.</p> <p>A complaint alleged that defendant sold to plaintiff a certain business for a sum of money, part in cash and the balance in ten notes secured by a purchase money chattel mortgage, which notes and mortgage were given to defendant; that plaintiff was induced to make the purchase through false representations made by defendant concerning the character of the business including schedules of prices for work done and the sources from which the work was obtained. Judgment was demanded for the full amount of the purchase price, that the bill of sale and the notes be declared null and void and surrendered to plaintiff, and that defendant be enjoined and restrained from negotiating the notes and from suing thereon. Held, that as plaintiff would have been entitled, in an action at law, had he so chosen, to the return of the cash payment, a motion to vacate an order of arrest granted in the present action will be denied.</p>

<p>Contracts — for sale and purchase of goods — meaning of c. i. f.— when delivery is complete — carriers — evidence — damages.</p> <p>The rule that in the absence of special facts a contract to sell goods is completed when the seller delivers them to a carrier to be transported to the buyer, although the goods are not then paid for, does not apply if delivery is to be made at the buyer’s place or the intention of the parties is shown by some other agreement.</p> <p>Where a contract for the sale and purchase of goods contains a provision for payment in cash c. i. f. the seller must ship the goods, arrange the contract of affreightment to the place of destination and pay its cost or allow it from the purchase price, and procure insurance for the buyer’s benefit for the safe arrival of the goods and pay therefor; when he has done this and forwarded the papers to the buyer, the seller has fulfilled his contract and delivery is complete.</p> <p>In an action between buyer and seller for damages for nonperformance of a contract for the sale of goods, the place of delivery is the important factor.</p> <p>Under a contract for the sale of thorium to be purchased in Chicago through a broker in London for a corporation in Holland, the goods were to be delivered in monthly installments at a stated price a pound, cash in advance, c. i. f. Rotterdam. Later by mutual consent the contract was changed to c. i. f. London dock, and some of the monthly deliveries were shipped. In an action by the buyer for defendant’s failure to ship the balance, held, that the c. i. f. provision showed that the parties did not intend that delivery should be at London.</p> <p>The plaintiff proved the value of thorium in London but offered no proof as to its value in Chicago. Held; that defendant's proof of the Chicago value plus freight and insurance charges must be accepted as the basis upon which plaintiff’s damages must be calculated, and that plaintiff was entitled to judgment accordingly.</p>

<p>Grand juries — impanelment of—county courts — when indictments dismissed.</p> <p>At least two terms of a County Court must be designated and fixed each year by the county judge, at which grand juries are to attend, and the judge may not extend a term of a prior year into the succeeding year at least so as to summon a new and additional grand jury for such additional term.</p> <p>Where a grand jury for a given term of a County Court has been summoned, impaneled and discharged, the court has no power to summon a second grand jury for such term.</p> <p>The grand jury attending the January, 1920, term of the County Court for Erie county was not legally impaneled and indictments found by it will be dismissed with direction that the cases be submitted to a new grand jury legally impaneled.</p>

<p>. Injunctions—who entitled to pendente lite — gas companies — franchises — villages.</p> <p>Franchise rates for gas cannot be disregarded by the gas company until the state, acting through its public service commission under police powers reserved, modifies the franchise.</p> <p>A franchise given in September, 1908, to a gas company by a village fixed the rate at which gas should be furnished to private consumers and to the village. In August, 1919, the company filed its petition with the public service commission for permission to change the maximum rates fixed by the franchise, on the ground that they were insufficient to provide an adequate return to the company. During the pendency of that proceeding the company filed with said commission a new schedule of rates and threatens to enforce the same from a certain date. Held, that in an action to restrain the charging of any but the franchise rates the plaintiff village was entitled to an injunction pendente lite.</p>

<p>Appeal from an order made ac Sjiecial Term denying a motion to sét aside the report of a referee for his misconduct.</p>

<p>Proceeding upon the judicial settlement of the account of an administrator.</p>

<p>Action to recover first installment of rent falling due under a written lease.</p>

<p>Action of foreclosure.</p>

<p>Cebtioeabis to review- assessments for personal property for the year 1894.</p>

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

<p>Evidence — summary proceedings to dispossess tenant for violation of covenant not to sublet — landlord and tenant — contracts.</p> <p>In a summary proceeding to dispossess a tenant for violation of a covenant not to sublet the premises or any part thereof without the landlord’s consent in writing, evidence that thereafter and prior to the making and signing of a lease for an adjoining building, the landlord orally consented to the renting o£ the premises involved in the present proceeding, to an under tenant, is admissible, not to vary the terms o£ the lease, but as tending to show a waiver of the condition that the landlord’s consent should be in writing; such waiver being one of the inducing causes for the tenant taking a lease of the adjoining building from the same landlord.</p> <p>Final order in favor of the landlord reversed, with costs, and final order granted dismissing the petition on the merits.</p>

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

<p>Evidence — rebuttal — trial — damages — sales — contracts — -witness.</p> <p>Upon the trial of an action to recover damages for failure to deliver nine pieces of goods called for under a contract to sell and deliver twenty-nine pieces, it appeared that defendant had actually delivered to plaintiff about thirty pieces of goods, of which ten were returned as defective, and although a witness for plaintiff testified that defendant accepted the same, actually replaced and delivered one piece and offered to replace three others, defendant’s salesman, on cross-examination, testified that there was no agreement between him and plaintiff that any pieces of merchandise were to be replaced, as claimed by defendant. Held, that the exclusion of a credit memorandum received by plaintiff from defendant which clearly tended to impeach the testimony of a witness for defendant that the returned merchandise was perfect, on the ground that it was not rebuttal, was reversible error.</p>

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

Appeal by plaintiffs from an order of the Municipal Court of the city of New York, borough of Manhattan, second district, setting aside the verdict of a jury in plaintiffs’ favor, and granting a new trial.

<p>Application for discharge of relator from imprisonment, upon writ of habeas corpus.</p>

Appeal by the landlord from a final order of the Municipal Court of the city of New York, borough of Manhattan, first district, dismissing summary proceedings.

<p>Motio.n for a peremptory writ of mandamus..</p> <p>■ The facts appear in the opinion.</p>

Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, in favor of the plaintiff, rendered upon the verdict of a jury.

<p>Contracts — breach of — modification of — corporations — evidence — consideration.</p> <p>Where a writing pursuant to which plaintiff agreed to handle certain commodities for defendant, a corporation engaged in the export and import business, for a certain percentage of the net profits of the business so handled, contains no specific provision concerning the financing of the business, it must be held that the writing does not and was not designed by the parties to express the entire arrangement between them.</p> <p>Where subsequently, as the result of a dispute as to whether said contract had been broken and of a compromise, a second agreement is made, which though purporting on its face to evidence a modification of the original contract in a number of respects did not purport to be the entire agreement, because the consideration for such modification was neither recited nor indicated, oral evidence tending to show that the modified agreement was made upon sufficient consideration, is competent in an action for breach of contract, and the exclusion of the evidence on the ground that it would vary the terms of the writing is erroneous, and a judgment dismissing the complaint on the ground that the second agreement was without consideration, will be reversed and a new trial ordered.</p>

Appeal by the defendants from a judgment of the District. Court in the city of New York for the fifth judicial district, rendered upon a trial before the justice thereof and a jury. Action to recover, a balance alleged to be due for work,' labor and services performed and materials furnished.' The answer alleges' that the work was not performed. in - accordance with the written contract made between the parties. 'The pleadings were in writing.

1 Appeal by the defendant from a judgment of the District 'Court in the city of New York for trié .first judicial district, rendered by the justice, -thereof, without a jury,, in favor of -the plaintiff. ' , , ' ! ' , :: 1 ''The'natUré of the action, and the material facts aré stated ■ in the opinion,' , , :

<p>Appeal from á judgment of the District Court.</p>

Appeal by the tenant from a final order of the Municipal Court of the city of New York, borough of Manhattan, fifth district, in favor of the landlord against the tenant.

<p>Appeal from a judgment for the defendant rendered by the - District Court in the city of New York for the fourth judi- ' nial district.</p> <p>Action for goods sold and delivered. Counterclaim for1 rent. • .■ .</p>

<p>Lease — recording — landlord and tenant — equitable servitude — pleading — actions — joinder.</p> <p>Plaintiff, the tenant under a five years’ lease, duly recorded, of a store in a block of buildings owned by the defendant corporation, covenanted to use the premises only for the sale of drygoods, and men’s and boys’ shirts, collars, ties, socks and handkerchiefs, and the landlord agreed not to rent any other store in the block for the sale of any of such articles. The lease was taken subject to a provision of existing leases giving the other tenants the right to sell ladies’ waists, dresses, infants’ wear, cloaks, suits, ladies’ gloves, corsets and hosiery. Thereafter by a two years’ lease under seal one of the defendants rented from the same landlord a store in the same block and covenanted to use the premises only for the sale of ladies’ gloves, corsets and hosiery. The complaint in an action to enjoin any further violation of the exclusive privilege granted to plaintiff by his lease, after alleging that defendant, the tenant under the last lease, is now selling “handkerchiefs, boudoir caps, and underwear not expressly or impliedly permitted ” in Ms lease and that plaintiff had no adequate remedy at law, asked for an injunction. Held, that the landlord having placed an incumbrance upon his own property, for plaintiff’s express benefit, plaintiff had the right to enforce the equitable servitude in Ms favor, and his motion for judgment on the pleadings will be granted.</p> <p>Demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action overruled, with leave to defendant to serve an answer.</p> <p>Passing the question whether the recording of plaintiff’s lease was not constructive notice to the world of his peculiar rights and the resultant restrictions upon others, his equity against the tenant under the last lease was stronger than if said tenant had had,actual notice, because he had expressly covenanted to limit Ms use of the premises so as not to invade plaintiff’s rights therein.</p> <p>Plaintiff had but one cause of action to enforce the servitude in Ms favor against the landlord and all other persons who might he equitably hound by or subject thereto, and though a cause of action against the tenant under the second lease was joined with the cause of action upon a similar covenant in a lease to another from the same landlord containing different terms and made before plaintiff’s lease, a demurrer to the complaint on the ground that causes of action had been improperly joined, will be overruled.</p>

<p>Motion for reargument of appeal.</p>

<p>, Motion for leave to appeal to the Court of Appeals.</p>

<p>Motion for reargiiment of appeal,k or for leave to appeal to' the Court of Appeals. , '■ . ' ■ ' - . •</p>

<p>Motion for leave to appeal to the Court of Appeals.</p>

<p>Motion- for leave- to appeal to the Court of Appeals.</p>

<p>Motion for resettlement of judgment rendered at General Term. - ,</p>

<p>Motion for reargument of appeal. ■</p>

<p>Motion for reargument. -</p> <p>Appeal from the City Court.</p>

<p>Motion for a certificate of reasonable doubt.</p>

<p>Motion for reargument or' leave to appeal to the Court of Appeals;</p>

<p>Motion for reargument of appeal.-</p>

<p>Motion for leave to appeal to the Court of Appeals.</p>

<p>Appeal from' order denying defendant’s motion for leave to serve a." supplemental answer to the complaint. See opinion below, 12 Mise. Rep. 211.</p>

<p>Appeal from order of Special Term denying plaintiff’s motion to vary the terms of a decree of divorce by increasing the amount of alimony. ^</p>

<p>Appeal from judgment in fa/or of plaintiff, entered on verdict, and from order denying motion for a new trial.</p>

<p>Appeal from order setting aside a verdict in favor of the defendant and granting a new trial.</p>

<p>Appeal from order setting aside a verdict in favor of the defendant and granting a new trial.</p>

<p>Appeal from judgment in favor of defendant, entered on verdict, and from order denying motion for new trial. 1 ■</p>

<p>Applications to become citizens of the United States.</p>

<p>, Appeal from judgment in fa-vor of plaintiff entered upon, verdict.</p>

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

<p>Appeal from judgment in favor of plaintiff entered upon a verdict;</p>

<p>Appeal from order.' ''</p>

<p>Appeal from order.</p>

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

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

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

<p>Appeal from order. . . .</p>

<p>. Appeal, from judgment in favor of plarttiff.</p>

<p>Appeal from order.</p>

<p>Trial by the court without a jury.</p>

<p>Injunctions — when granted pendente lite — gas companies-— contracts — franchises — municipal corporations — Public Service Commissions Law, §§ 66(12), 71.</p> <p>A provision in a franchise to a gas company that consumers of gas in the municipality shall not be charged more than a certain rate per one thousand cubic feet, constitutes a contract for the benefit of said consumers and an action to enforce the same is maintainable by any one of them, or by the municipality, as the trustee of an express trust.</p> <p>While the public service commission has power to fix a higher rate than the contract rate, section 66 (12) of the Public Service Commissions Law, in the absence of explicit language compelling, should not be construed as authorizing the gas company to increase the contract rate by merely filing a new schedule stating a different rate, and where after it had done so the municipality filed a complaint with the commission pursuant to section 71 • of said statute, which has not been acted upon or decided, the municipality, in an action to enjoin the gas company from charging any sum in excess of the contract rate, unless by permission of the public service commission after a hearing, will be granted an injunction pendente lite.</p>

<p>Motion for judgment on the pleadings.</p>

<p>Summary proceeding under section 74 of the Public Service Commissions Law.</p>

<p>Action in ejectment.</p>

<p>Application for a compulsory reference under section 1013 of the Code of Civil Procedure.</p>

<p>Action for waste.</p>

<p>Objection to accounts of administratrix.</p>

<p>Carrier — action to recover freight, demurrage and other charges governed by bill of lading — judgment for plaintiff.</p>

<p>Carrier — action to recover freight charges — no agreement that consignee should pay — judgment for plaintiff though no relation between it and defendant or any connecting carrier other than those imposed under the rules of Interstate Commerce Commission.</p>

<p>Action- to recover the value of four United States Liberty bonds.</p>