Volume 148 — New York Reports

The nature of the action and the facts, so far. as material, are stated in the opinion. The statement, in the opinion of the General Term, that the contract was substantially performed, is entirely without proof, and the failure to prove a substantial performance of the contract is fatal. (Dauchy v. Drake, 85 N. Y. 411.) Plaintiff set up in the complaint one cause of action and proved, under defendant’s objections and exceptions, a different cause of action. (Code Civ.

This action was brought to recover damages for personal injuries alleged to have been caused by the negligence of defendant. The facts, so far as material, are stated in the opinion. After a litigant has fully determined to make a public exposure of all his ailments and diseases, the original reason of the rule, which rests in a desire for secrecy and in a modest shrinking from publicity, wholly fails. (Code Civ.

<p>1. Costs—Allowances. In the absence of a statute iiroviding for costs or allowances for expenses in legal proceedings none can be recovered.</p> <p>3. Condemnation Proceedings — Costs—Extra Allowance. The authority given by section 3373 of the Code of Civil Procedure to grant an extra allowance to a defendant in condemnation proceedings relates to proceedings taken under the general law embodied in chapter 33 of the Code, and does not extend to proceedings taken under a subsequent special statute (such as chapter 481, Laws of 1893, authorizing the city of Brooklyn to acquire the property of the Long Island "Water Supply Company), enacted to cover a case not within the general law, and which prescribes an independent and materially different procedure and makes no provision for costs or allowances.</p> <p>3. Condemnation Proceedings — Costs — Extra Allowance. The right to costs, in condemnation proceedings taken under such a special statute, containing no provision for costs or allowances, is governed "by the general statute as to costs in special proceedings (§ 8240, Code Civ. Pro.), which gives only the specific costs allowed for similar'services in an action, and does not authorize any additional allowance.</p>

<p>1. Master and Servant—Indefinite Hiring. A general or indefinite hiring does not import an employment by the year.</p> <p>2. Hiring at Wild. A hiring at so much a year, no time being specified, is an indefinite hiring; and such a hiring is a hiring at will, and may he terminated at any time by either party.</p>

Lawrence county into assembly districts made by its board of supervisors and ordered that a peremptory writ of mandamus issue directing the board to re-con vene and re-divide the county into assembly districts. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion.

<p>1. The Civil Service Act. The Civil Service Act (Chap. 354, Laws of 1883, as amended by chap. 681, Laws of 1894) constitutes a general system of statute law applicable to appointments and promotions in every department of the civil service of the state with such exceptions only as are specified in the statute itself.</p> <p>2. The Civil Service Act — Constitution of 1894 — Department of Public Works. The effect of the provision of the Constitution of 1894 (Art. 5, § 9) that “ appointments and promotions in the civil service of the state * * * shall be made according to merit and fitness, to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive,” is to subject to the operation of the Civil Service Act appointments in the department of public works of the state of persons to be employed in the care and management of the canals, notwithstanding the constitutional provisions (Art. 5, § 3) vesting the power of appointment and removal of such persons in the superintendent of public works.</p> <p>3. The Civil Service Act — Constitution of 1894—Superintend-ent of Public Works. The decision in People ex rel. Killeen v. Angle (109 N. Y. 564), to the effect that the legislature could not restrict or qualify the power of appointment and removal vested by the Constitution in the superintendent of public works, and, consequently, that the Civil Service Act did not apply to the exercise of that power, has been superseded by the civil service section of the Constitution of 1894.</p> <p>4. The Civil Service Act — Constitution of 1894. The civil service section of the Constitution of 1894 is not rendered non-self-executing by the provision therein that “laws shall be made to provide for the enforcement of this section;” but the effect of the section, in connection with the constitutional provision (Art. 1, § 16), that “ such acts of the legislature of this state as are now in force, shall be and continue the law of this state, subject to such alterations as the legislature shall make concerning the same,” is to bring all positions in the civil service, not excepted by the statute, within the operation of the Civil Service Act of 1888 and its amendments without re-enactment.</p> <p>5. Department of Public Works —Civil Service Commission— Payment of Salary by Comptroller. When a position in the department of public works of the state has been classified by the civil service commission, in pursuance of the Civil Service Act, as one subject to competitive examination, a person appointed to such position by the superintendent of public works subsequent to the taking effect of the civil service section of the Constitution of 1894 and to such classification, is not entitled to a mandamus to compel the state comptroller to pay him the salary attached to such position, in the absence of a certificate from the civil service commission that he had been duly appointed pursuant to the Civil Service Act.</p>

The nature of the action and the facts, so far as material, ¡are stated in the opinion. The risk in cleaning the machine with the cog wheels unguarded, as they were during the entire period of her service, was obvious and known to the plaintiff, and was, therefore, assumed by her.

<p>1. Will—Subscribing Witnesses. Subscribing witnesses to a will are required for the purpose of attesting and identifying the signature of the testator; and in order to do this, it is essential that they should see the testator subscribe his name, or that with the signature visible to them he should acknowledge it to be his.</p> <p>3. Probate—Reversal of Surrogate’s Decree — Question of Pact — Trial by Jury. Upon appeal from a judgment of General Term of the Supreme Court, which reversed a decree of a Surrogate’s Court refusing probate to a will and directed the Surrogate’s Court to admit the will to probate, it appeared that the surrogate found that the instrument was not subscribed by the testatrix in the presence of either of the two ■subscribing witnesses, and that the testatrix did not-declare to either of them that she had subscribed the instrument; but it appeared that the testimony of one of the subscribing witnesses tended to show that the .signature of the testatrix was upon the instrument at the time it was presented to him for his signature, and that she then stated that she had •signed it, while the testimony of the other subscribing witness was to the effect that at the time the paper was presented to her it was so folded that she saw only the signature of the other subscribing witness, and that she recalled no expression on the part of the testatrix, in the conversation between the testatrix and the other subscribing witness, in which she stated that she had signed the instrument. Held, that this testimony presented a question of fact which the General Term was empowered to determine (Code Civ. Pro. § 3588), and that its reversal of the Surrogate’s Court thereon should not be interfered with ; but that, instead of directing the admission of the will to probate, the General Term should have ordered the trial of the question of fact by a jury. (Code Civ. Pro. § 3588.)</p> <p>3. Probate—Reversal of Surrogate’s Decree—Question of Pact—Trial by Jury. When the Supreme Court, upon an appeal from a decree of a Surrogate’s Court made upon a petition to admit a will to probate, reverses the decree upon a question of fact, it must, by force of section 3588 of the Code of Civil Procedure, direct a trial by a jury, unless the evidence disclosed by the record is such that in case of a trial before a jury the court could properly take the facts from the jury and determine the question as one of law.</p> <p>4. Reversal upon Pacts. Although a review of the opinion of the General Term may indicate that a reversal of a judgment by it was based upon the facts, the presentation of a certificate of the General Term stating that its reversal was upon “the ground stated in the opinion” is not a proper mode of informing the Court of Appeals that the reversal was upon a question of fact. (Code Civ. Pro. § 1338.)</p>

This action was brought to recover damages alleged to have-been sustained, through the defendant’s alleged negligence in failing to cancel three certificates of its capital stock, surrendered to -it for transfer, which the plaintiff claimed he was induced to receive as valid, although other certificates had been issued in their stead. The report of the referee was as follows : Findings of Fact. First.

Appeal by the defendant Lenox Smith in condemnation proceedings, from an order of the General Term in the first judicial department, made November 15, 1895, affirming an order appointing commissioners of appraisal, entered on the direction of the court upon the decision of a referee, in favor of the petitioner and against the defendant, after a trial of the issues.

<p>1. Shipping — Navigation — Contbibutoby Negligence. Where the undisputed evidence in an action to recover damages sustained through a collision between two steam vessels belonging to the parties respectively, shows that the plaintiff failed to comply with a rule of navigation,(U. S. Rev. Stat. § 4333, rule SI) applicable to the situation of the vessels immediately preceding the collision, and which required him to “slacken her speed, or, if necessary, stop and reverse ” his vessel, he is guilty of contributory negligence as matter of law, and the submission of the question to the jury is reversible error.</p> <p>3. Mabitihie Tobt —Damages. Where an action at law is brought for a maritime tort, the admiralty rule of an equal division of damages, where both vessels are at fault, does not prevail, but the genei'al rule is that neither can recover.</p>

<p>1. Deceased Insolvent Debtor — Creditor’s Action under Chap. 740, Laws qp 1894—Compulsory Reference. When, in an action brought under the statute (Laws of 1894, chap. 740), by an alleged creditor of a deceased insolvent, to set aside as fraudulent a conveyance made by the decedent, the alleged debt is denied, the issue as to its existence is immediate and direct, not collateral or incidental; and, hence, when no •difficult question of law is involved, a compulsory reference, on the ground that the' examination of a long account will be required (Code Civ. Pro. § 1013) is properly ordered, when it appears that the establishment of the debt requires the examination of many items of debits and credits.</p> <p>3. Waiver of Tort—Debt—Account. The tort involved in fraudulent overdrafts, alleged to have been made by a customer of a bank through collusion with one of its employees, may be waived by treating the overdrafts as a debt for money had and received; and such debt may, in case of the death of the customer insolvent, form the basis for an action by the bank under the statute (Laws of 1894, chap. 740), to set aside as fraudulent conveyances made by him, in which the debt may be substantiated by an account between the parties, consisting of debits of checks cashed and credits of deposits and discounts.</p>

The facts in this case were agreed upon by the parties, and were as follows: “ That on the 12th day of October, 1891, during the continuance of the said policy of insurance, Samuel D. W. Menneiley, the person mentioned in the complaint as the person insured in and by said policy of insurance, died ; that at the time of his death he was stopping as a guest at the Millard Hotel, in Omaha; Hebraska; that he went to his room in said hotel on the night of the said 12th day of…

<p>1. Public Officers—Time of Election. The election of a public officer must be referred to the day upon which the electoral body, in whom the right of election resides, expresses its choice by voting for candidates for the office, and not to some subsequent day when the result is declared; and there is no distinction in this respect between town and other elections.</p> <p>2. Town of Watervliet — Election of Town Clerk—Term of Office — Laws of 1893, Chap. 344. Chapter 344, Laws of 1893, approved April 11, 1893, amending the Town Law (Chap. XX of the General Laws) by providing, among other things, that the term of office of town clerks should he two years, did not retroact so as to enlarge from one year the term of office of a person for whom ballots were duly cast and canvassed, as prescribed by law, in the several election districts of the town of Watervliet on the day before the approval of that act, statements of which ballots were delivered to the annual town meeting on the day the act was approved,'and the result announced several days thereafter, in pursuance of a special statute (Laws of 1858, chap. 22, § 19), which made it the duty of the annual town meeting hoard to canvass such statements and declare the result “the same as though said ballots had been polled at such annual town meeting."</p> <p>3. Town of Watervliet—Annual Town Meeting — Lawsof 1858, Chap. 22. It was within the power of the legislature to authorize by special statute (Laws of 1858, chap. 22) the electors of the town of Watervliet to elect town officers on the day preceding the annual town meeting, and so, in connection with the general statutory provisions in regard to annual town meetings, virtually enact that town meetings in that town should he held upon two successive days.</p> <p>4. The Town Law—Laws of 1893, Chap. 344. Chapter 344, Laws of 1893, approved April 11, 1893, amending the Town Law (Chap. XX of the General Laws) can have full effect by confining its application to town elections in which the votes for town officers were actually cast after it took effect, and thus giving to it a prospective operation.</p> <p>5. Town Officers — Extension of Term. The legislature cannot extend the term of a town officer after, his election,</p>

In this action, which was brought to recover for the services rendered to the defendant by the plaintiffs as his attorneys,, the defendant interposed an answer, putting in issue the-material allegations of the complaint, and the action was tried upon the issues formed by the pleadings. Judgment was rendered in favor of the plaintiffs upon the verdict of a jury,, and an execution issued upon the judgment was returned only partially satisfied.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made December 15, 1893, which overruled defendant’s exceptions, ordered to be heard in the first instance at General Term, denied a motion for a new trial and ordered judgment for the plaintiff upon a verdict directed by, the court.</p>

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department, made December 3, 1895, which affirmed on certiorari a decision of the state comptroller, assessing a tax against the relator under chapter 542, Laws of 1880.</p>