Volume 15 — Bedell

The nature of the action and the facts, so far as material, are stated in the opinion. Proof of actual intent to prefer Deshel & Co. on the part of the Union Cloak and Suit Company, the bankrupt, was not requisite to establish plaintiff’s case and the charge of the trial justice to such effect was a reversible error. (Crooks v. P. Nat. Bank, 46 App. Div. 335 ; Pearsall v. Nat. Bank, 74 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The judgment herein should be reversed fop the reception of illegal, immaterial and incompetent evidence, and the improper conduct of the trial, whereby the matters in issue were obscured and lost sight of, and the jury misled and prejudiced against the plaintiff.

The nature of the controversy and the facts, so far as material, are stated in the opinion. The tax on the rent is void. The act imposing the tax offends the rule of equality, which is an “inherent limitation upon the taxing power.” (Pollock v. F. L. & T. Co., 157 U. S. 599; Matter of Pell, 171 N. Y. 48; Stuart v. Palmer, 74 N. Y. 183 ; Cooley on Taxn. 164; Desty on Taxn. 28; Dillon on Mun. Corp. [4th ed.] 897, § 737; Seeley v. Pittsburgh, 82 Penn.

The nature of the action and the facts, so far as material, are stated in the opinions. Neither at the close of plaintiff’s case nor of the case of defendant vehicle company was there any evidence of the latter’s negligence. (Baulec v. R. R. Co., 59 N. Y. 356; Hayes v. R. R. Co., 97 N. Y. 259 ; Dwight v. Ins.

The facts, so far as material, are stated in the opinion. The court erred in holding that there was no contract made by the testator with the defendant’s parents whereby and wherein he agreed to give to the defendant any share of his property at his decease, and that there is no clear and convincing evidence establishing such a contract, and that he did not enter into an agreement with the parents of Lyman A. Stevens whereby lie agreed or intended to make the defendant Lyman…

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to admit evidence of the failure to file annual reports in the clerk’s office of Hew York county. (Code Civ. Pro. §§ 1785, 1798; Nimmons v. Tappan, 32 N. Y. Super.

This action was brought to set aside certain transfers of personal property made by Howard E. King to the defendant, or for its benefit, on the ground that such transfers created unlawful preferences under the Bankrupt Law. The determination of the Appellate Division is reviewable in this court.

This action was brought to recover damages for the breach of an alleged contract between the plaintiff and the Rutgers Fire Insurance Company, which company was subsequently consolidated with the Globe Insurance Company and the obligations of the former assumed by the defendant. It was error to exclude the contract which is the basis of the action. (Cook on Corporations [4th ed.], 1539, § 722; Trustees, etc., v. McKechnie, 90 N. Y. 618; N. E. I. Co. v. G. El.

<p>Insurance (Fire) — Action on Policy by Assignee op Insured — When Evidence op Agreement to Insure Assignee’s Interest by Indorsement on Policy Inadmissible. In an action brought against a fire insurance company by an assignee for the benefit of creditors upon a policy issued to his assignor, it is reversible error to admit evidence, duly excepted to, of a verbal agreement between the assignee and an agent of the company, whereby the latter agreed to insure the assignee’s interest in the property mentioned in the policy issued to his assignor by an indorsement thereon, if it could be obtained, or if not, by issuing a binding slip or paper ‘ ‘ which would keep the insurance all right and insure him from that time,” where no amendment to conform the pleadings to the proof was asked for; and it is also error to submit the case to the jury upon the theory that the plaintiff might recover if the jury should find that such an agreement was made.</p>

Brown, deceased. 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. The plaintiff did not establish a case of total disability within the terms of the law as it ivas amended before he was in jured. (Supreme Tent v. King, 79 Ill. App. 145; Hutchinson v. Supreme Tent, 68 Hun, 355 ; Knapp v. P.M. Ins. Co., 53 Hun, 84; Slaveland v. F. & C. Co., 67 Wis. 174; Albert v. Supreme Council, 34 Fed.

The nature of the action and the facts, so far as material, are stated in the opinion. The learned trial court committed error in its charge and in ruling in respect to requests to charge in that it misled the jury as to the degree of malice which will authorize an award of punitive damages and permitted them to mulct the defendant in such damages for acts of his employees which he did not authorize or ratify.

The nature of the action and the facts, so far as material, are stated in the opinion. Where the defendant,. with knowledge of plaintiffs equitable title and lien upon the moneys due, has used his apparent authority to receive payment and thereby effectually deprives plaintiff of all other recourse to the money to which she was equitably entitled, he cannot be permitted in good conscience to retain it.

Appeal in each action from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 12, 1903, reversing judgments in favor of plaintiffs entered upon decisions of the court on trial at Special Term and granting new trials. The nature of the actions and the facts, so far as material, are stated in the opinion.

The complaint alleges, in substance, that the- plaintiff is twenty-six years of age, unmarried, and a resident of the borough of Brooklyn, and was and is a teacher by occupation, employed in one of the public schools of that borough, and until the publication of the libel had always borne a good character and reputation. The complaint then sets up the incorporation of the defendant and its ownership of the newspaper in question, The Sun.

The facts, so far as material, are stated in the opinion. The demurrer should have been sustained upon the first and second grounds, that more than one crime is charged in a single count. (Code Crim. Pro. §§ 278, 279; Penal Code, § 3841; People v. McCarthy, 110 N. Y. 314; People v. Upton, 38 Hun, 107; People v. Tower, 135 N. Y. 459; People v. Cole, 2 N. Y. Cr. Rep. 110; People v. Stock, 21 Misc. Rep. 147; People v. Sebring, 14 Misc.

The nature of the action and the facts, so far as material, are stated in the opinions. Section 98 of the Bailroad Law was a valid enactment and was in full force and effect and was applicable to the Brooklyn Heights Bailroad Company at the time this accident happened. (N. O. G. Co. v. L. L. Co., 115 U. S. 672; Beer Co. v. Massachusetts, 97 U. S. 25.) There was no impairment of the obligations imposed by the franchise of 1853. (Vil. of Mechanicville v. S. & M. S. Ry.

The nature of the controversy and the facts, so far as material, are stated in the opinion. It was not the intention of Mary J. Walker to burden her residuary estate with the payment of the transfer tax upon the trust fund. {Matter of Huntington, 168 N. Y. 399.) The provisions of the will do not support the inference that it was Mrs. Walker’s intention that the fund should pass free from the burden of the tax, if one attached, at the expense of her residuary estate.

Cross-appeals from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 12, 1903, which modified and affirmed as modified an order of Special Term directing the distribution of funds in the hands of the receiver herein.

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 14,1903, which affirmed an order of Special Term vacating a judgment against the defendant.</p> <p>The facts, so far as material, and the question certified, are stated in the opinion.</p> <p>Since there was a default in appearing the plaintiffs were entitled, by an express provision of the Code of Civil Procedure, to enter judgment, and their attorney’s practice in so doing was regular. (Code Civ. Pro. § 1212.) There can be no default in pleading until there has been an appearance. An extension of defendant’s time to plead does not operate as an extension of his time to appear, nor can it prevent judgment by default.for the want of an appearance. (Code Civ. Pro. § 1212; Bangs v. Selden, 13 How. Pr. 374 ; Bank of Genesee v. Spencer, 15 How. Pr. 14.) There was no apjoearance. (Stephens v. Arthur, Salk. 544; Cooley v. Lawrence, 12 How. Pr. 176; De Wandelaer v. Coomer, 6 Johns. 328 ; Vanderpoel v. Wright, 1 Cow. 209 ; Mann v. Carley, 4 Cow. 148; Colby v. Knapp, 13 N. H. 175; Francis v. Sitts, 2 Hill, 362 ; Huff v. Shepard, 58 Mo. 242 ; P. L. Co. v. Galbraith, 38 App, Div. 68 ; Benedict v. Arnoux, 38 N, Y, Supp. 882.)</p> <p>Defendant did not make default in appearing. (Code Civ. Pro. § 1212; Phinney v. Broschell, 80 N. Y. 544.) The order extending time to answer or demur ipso facto extended the time to appear. (Code Civ. Pro. § 781.) The order extending time to plead, the indorsement thereon and the affidavits submitted on obtaining the same, constituted a sufficient notice of appearance. (Krause v. Averill, 4 Civ. Pro. Rep. 410 ; Ayres v. W. R. R. Co., 48 Barb. 142; Carpenter v. R. R. Co., 11 How. Pr. 481; Bell v. Good, 22 Civ. Pro. Rep. 317; Quinn v. Tilton, 2 Duer, 648; Moran v. Helf, 52 App. Div. 481.)</p>

a Trial Term for the county of Sullivan, May 30, 1903, upon a verdict convicting defendant of the crime of murder in the first degree. The facts, so far as material, are stated in the opinion. It is the contention of the defendant that she was acting in seif-deiensc at the time the decedent came to his death. Evidence, therefore, of previous threats made by the deceased against her was improperly excluded.

The nature of the action and the facts, so far as material, are stated in the opinion. The •judgment should be reversed, and the complaint dismissed, with costs.

<p>1. Contracts Executed by Insane Persons Are Voidable at Their Election upon Recovering Their Reason. The deed of a person actually insane, but never so adjudged, is not absolutely void, in the sense of being a nullity, but is voidable at his election upon recovering his reason, and may then be ratified or avoided at his pleasure, the deed having force and effect until the option to declare it void is exercised. The authorities upon the subject of void and voidable contracts collated and discussed.</p> <p>2. Insanity of Grantor Not Material When Deed Executed by Him Has Been Ratified. The fact that the grantor was insane at the time of the execution of a deed is not controlling in an action of ejectment brought by him to recover the property conveyed, if after regaining his reason he ratified the deed, since he may ratify or avoid it at his election.</p> <p>3. Evidence Tending to Show Ratification Admissible in Action of Ejectment to Recover Property Conveyed by the Deed. The complaint in a previous action brought by the plaintiff against his agent appointed by powers of attorney executed while he was insane, who had received the consideration for the property conveyed, the allegations of which complaint would have permitted the recovery from him of the purchase price, which action was pending and undetermined at the time of the trial of the ejectment action, is competent evidence therein, since the plaintiff could not sue for both the money and the land; and, having elected to sue for the money, the allegations of the complaint in the former action are material upon the question of ratification.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 23, 1903, which reversed an order of Special Term requiring plaintiff to give additional security for costs. The nature of the action, the facts, so far as material, and the question certified are stated in the opinion. The order requiring plaintiff to file additional security was right and should be sustained. (Code Civ.

The nature of the action and the facts, so far as material, are stated in the opinions. The statute to the extent invoked herein is constitutional. (McAvoy v. City of New York, 52 App. Div. 485; McCann v. City of New York, 52 App. Div. 358; McCunney v. City of New York, 40 App. Div. 482; McMahon v. Mayor, etc., 22 App. Div. 113; C. C. T. Co. v. K. R. R. Co., 154 N. Y. 495; N. H. Co. v. Bement, 163 N. Y. 522; People ex rel. v. Tax Comrs., 174 N. Y. 419 .

. The nature of the action and the facts, so far as material* are stated in the opinion. The court erred in directing the removal of the building. (Amerman v. Deane, 132 N. Y. 355 ; Ely v. Supervisor of Erie, 36 N. Y. 297; Wood on Nuisances, § 33; Health Department v. Dassori, 21 App. Div. 348; Lawton v. Steele, 119 N. Y. 226 ; Babcock v. City of Buffalo, 56 N. Y. 288; Meeker v. Van Rensselaer, 15 Wend. 397.) The new trial ordered was of the cause as a whole. (Code Civ.

The facts, so far as material, are stated in the opinion. (People ex rel. v. Common Council, 78 2N. Y. 56; 104 N. Y. 96 ; People ex rel. v. Board of Canvassers, 156 N. Y. 36; People ex rel. v. Supervisor, 154 N. Y. 381; People ex rel. v. Dalton, 158 N. Y. 175 ; People ex rel. v. Jeroloman, 139 N. Y. 14.) If the attorney-general were the relator here, he would be absolutely entitled to a mandamus compelling the respondent to perform its duty.

This action was to set aside and vacate a judgment recovered in March, 1900, wherein the defendant, the Third National Bank, was plaintiff, and the plaintiffs in this action, with others, were defendants, entered upon a decision rendered by Mr. Justice Hiscock, after a trial before him at Special Term.

The nature of the action and 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. The conclusions of law of the trial court, that the board of education of the city of Rochester had power to employ sisters of charity to teach in St. Mary’s Boys’ Orphan Asylum and to pay them for such services were erroneous. (People ex rel. v. Bd. of Education, 13 Barb. 400 ; Cooley on Const.

The nature of the action and the facts, so far as material,, are stated in the dissenting opinion. The complaint states a good cause of action.

<p>Negligence—When Question Whether a Decedent Was Guilty of Contributory Negligence in Crossing a Street in Front of an Approaching Car Should Be Submitted to the Jury. Where a person was struck and killed by a south-bound street railway car, running at a high rate of speed, while crossing diagonally from the southwest corner of a street, to catch a car waiting on the northeast corner, the conductor of which called to him to hurry up if he wanted to get that car, the question whether decedent was chargeable with contributory negligence, in walking diagonally across a street facing an approaching car and colliding therewith, should not he determined as a question of law but should be submitted to the jury upon the ground that the call of the' conductor may have momentarily diverted the attention of the decedent from the approaching car and that the loss of time occasioned thereby may have prevented his escape and resulted in his death, since this, taken in connection with other circumstances disclosed in the case, including the decedent’s probable deception as to the speed of the south-hound car and his right to suppose that the motorman would have it under control as he approached the crossing, presented a question of fact rather than one of law.</p>

<p>1. Husband and Wipe. The obligation to support his wife and their children rests primarily upon the husband; no obligation rests upon the wife to support the family, although she has a separate estate. If by reason of a valid agreement she applies her separate estate to its support equity will not reimburse her; but unless the agreement is plainly and definitely established and is fair, reasonable and just, it will not be enforced.</p> <p>3. Referee’s Power to. Take and State Account Without Entering Interlocutory Judgment. A referee appointed to hear and determine the issues in an action for an accounting has power to take and state the account between the parties without making and entering an interlocutory judgment that an account is necessary before proceeding with the action.</p> <p>3. Incidental Statement of Deceased Witness as to Which She Could Hot Have Been Cross-examined, Inadmissible. Evidence of an incidental statement by the plaintiff, who died after the commencement of the action, made by her upon the taking of her deposition before a referee in a special proceeding, to the effect that her husband • did not support her; that she was obliged to support herself and pay all the bills, which was immediately stricken out and became no part of the evidence received by the referee, so that she had no right or opportunity to explain it or to be cross-examined in relation thereto, is inadmissible upon any ground, either under section 830 of the Code of Civil Procedure or at common law.</p>

The. nature of the action and the facts, so far as material, are stated in the opinion. The trial court permitted the plaintiff to attempt to drink a glass of water before the jury for the purpose of showing how he trembled, permitted the plaintiff to attempt to write his name for the purpose of showing the extent of his injuries. This was error, necessitating a reversal of this cause.

<p>Appeal — Where Findings op Fact Must Be Assumed under Code Civ. Pro. § 1838, to Have Been Approved Appellate Division Cannot Reverse upon the Law in the Absence op Legal Error. Where the question whether or not an artisan’s lien has been waived is one of fact, and the trial court in a short decision has found upon sufficient evidence that the lien existed, and must be assumed to have found that there was no waiver thereof, the Appellate Division, in the absence of errors arising upon the trial, cannot properly reverse upon the law, upon the ground that there was a waiver, and grant a new trial.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The article complained of is susceptible of the meaning ascribed to it In the complaint, and is, therefore, libelous per se. (Gibson v. S. P. & P. Assn., 71 App. Div. 566 Sanderson v. Caldwell, 45 N. Y. 398; 18 Am. & Eng. Ency. of Law [2d ed.], 974, 990; Code Civ.

The facts so far as material, are stated in the opinion. Doubtful questions of law are involved and the purchaser should not be compelled to run the risk of having to litigate those questions with Marion Travis or her issue. (Burnham v. Fleming, 100 N. Y. 1; Maries v. Halligan, 61 App. Div. 179; Brokaw v. Duffy, 36 App. Div. 147; 165 N. Y. 391; Abbott v. James, 111 N. Y. 673; Jordon v. Poillon, 77 N. Y. 518.) There is no ground to question the title.

The facts, so far as material, are stated in the opinion. The objections raised by the purchaser were sufficient to justify his rejection of the title offered to him. (Moore v. Williams, 115 N. Y. 586; Ghreemblatt v. Hermamn, 144 N. Y. 20; Brohaw v. Duffy, 165 N. Y. 399.) The tenant in possession under an unrecorded lease was made a party and is bound by the judgment.

' This action was brought to recover damages for the death of plaintiff’s intestate alleged to have been caused by the negligence of defendant. The facts, so far as material, are stated in the opinion.

department, entered April 24, 1903, which reversed a decree of the Kings County Surrogate’s Court settling the accounts of Rebecca A. R. Barefield, as administratrix of the estate of Mary E. Rosell, deceased. The facts, as far as material, are stated in the'opinion.

<p>Motion to amend remittitur.</p>

The material portions of the will are subdivisions fourth and fifth, reading as follows: “ Fourth.

The facts, so far as material, are stated in the opinion. The court erred in permitting the witness Greenberg to testify to a pretended gift of the posts in question to Mrs. Keating, and in refusing to strike out this evidence after it had affirmatively appeared that he neither owned the posts nor had any authority from the owner to give them away.

The facts, so far as material, are stated in the opinions. The court erred in his. charge to the jury that belief on reasonable grounds that Martin Davis would sanction and ratify her use of his name on that note was not to bear upon the criminal intent unless she believed “ also that Martin Davis would recognize her act as a proper and right act which she had a right to perform,” and in refusing to charge that if she believed Martin Davis would sanction and ratify the name…

1890, ch. 568) as amended. ,The facts, so far as material, are stated in the opinion. The County Court had no authority or jurisdiction to increase the damages of this appellant or any other person. (N. Y. Const, art. 1, § 7; Matter of Village of Middletown, 82 N. Y. 202; Matter of Feeny, 20 Misc. Rep. 272; People v. Thayer, 88 Hun, 136; Matter of Carpenter, 11 Misc. Rep. 690; Matter of Pugh, 22 Misc.

Motion by the receiver of the defendant for a recall of the remittitur and for a reargument of the appeals herein ; or, if reargument is denied, for an amendment of the remittitur by inserting therein a more definite specification or description of the parties entitled to a distributive share of the fund in controversy.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, made October 16, 1903, which reversed an order of Special Term granting a peremptory writ of mandamus to compel defendant t,o recognize the relator as a teacher in the public schools of the city of New York and granted an alternative writ. The facts, so far as material, and the questions certified, are stated in the opinion.

The facts, so far as material, are stated in the opinion. The tax is upon the right to do business, and the statute shows a clear intention that its amount shall be determined by the amount of business done. (People ex rel. v. Miller, 177 N. Y. 51] People ex rel. v. Morgan, 57 App. Div. 335.) Unearned premiums which have been returned to the policyholders are not. premiums received or collected for “ business done.” (G. A. Ins.