Volume 15 — E.H. Smith

The nature of the action and the facts, so far as material, are stated in the opinion. It was not the intent of James B. Livingston and Lewis H. Livingston, the settlors in the deed of 1876, to include any particular property under the trusts thereby created. It was their intention that said deed should specify only the value or the amount of the principal which was ultimately to be received by the trustee therein named.

This action was brought for the construction of the will of Mary Griffin, deceased, the settlement of the accounts of plaintiff as trustee and the distribution of the estate. The facts, so far as material, are stated in the opinion. The appellant Heinicke, as the adopted child of Mrs. Lengnick, has the status of her “ lawful issue,” and as such is entitled to take the remainder under item third of Mrs. Griffin’s will.

This action was brought to recover the sum of $15,000 and interest, the penalty in a bond given by Matthew T. Trumpbo nr, with the defendant’s testator, Thomas Cornell, as surety for the faithful performance by Trumbour of the duties of assistant treasurer of the plaintiff. The facts, so far as material, are stated in the opinion. The words in the bond “ even though he holds under successive appointments ” are words of limitation and exclusion. (K. M. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff should recover, even if his own negligence exposed him to the risk of injury, if the injury from which he suffered was more immediately caused by the omission of the defendant to use ordinary care for the purpose of avoiding such injuries, after having such notice of the plaintiff’s danger as would put a prudent man upon his guard.

Bullard, as executor, and from a judgment entered in pursuance thereof. Jonas Stickney executed two wills, one about May 1, 1893, the second about May 12, 1893. The former was destroyed by his attorney by his direction. Subsequently, in the summer of 1895, he executed a third will in the forenoon and destroyed it in the afternoon, expressing his regret at having executed it, and saying that he thought he would keep his old will.

■ Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 4, 1898, affirming a judgment of the Monroe County Court, entered upon a verdict directed in favor of the plaintiff. This action was brought to recover rent reserved for the Use of a certain building in the city of Rochester under a Written contract and lease.

The facts, so far as material, are stated in the opinion. The courts below erred in holding that the gift to the surviving son, Sylvester P. Moore, was contingent upon his also surviving the widow of the testator, and, therefore, that the estate should be distributed as in case of intestacy, the daughter of Sylvester P., the appellant, Nellie K. Moore, receiving only one-half, instead of the whole thereof.

This action was brought against William E. Sinn, as executor of Walter L. Sinn, deceased, but the executor died while the appeal to the Court of Appeals was pending, and the present defendant and respondent was substituted in his place. The nature of the action and the facts, so far as material, are stated in the opinion. The statute contemplates a cause arising subsequent to the signing of the lease.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 10, 1897, unanimously affirming a judgment in favor of plaintiff entered upon a verdict, and an order denying a motion for a new trial.

The nature of the action and the facts, so far as material, are stated in the opinion. The appellant contends that the principal sum necessary to produce the income of $8,000 per annum, which income was bequeathed to the testator’s widow during her natural life, in the 4th clause of his will, was not disposed of by the will upon the death of the widow, she not having remarried, but became the property of the next of kin of the testator.

Miller, deceased, on proceedings for the probate thereof. The deceased, a young man of twenty-six years of age, by his last will and testament, provided,' “First.

The Life Union, prior to the plaintiff’s appointment 'as its receiver .on its dissolution for insolvency, ¡November 29, 1893, was a domestic corporation engaged in the business' of life insurance on the co-operative or assessment plan. 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 Life Union never had any title to the moneys paid by Levy to Law. (Met. Bank v. Heiron, L. R. [5 Ex. Div.] 339 ; Lister v. Stubbs, L. R. [45 Ch. Div.] 1 ; Caussidiere v. Beers, 2 Keyes, 198 ; Conway v. Conway, 4 Misc. Rep. 312.) The surrender of his note by respondent was good consideration for the money paid him. (Stephens v. Bd. of Education, 79 N. Y. 187 ; Justh v. Nat.

The facts, so far as material, are stated in the opinion. It was error for the surrogate to exclude the testimony of the witnesses Caroline Potter and Seaman Gr. Potter. They were not disqualified under section 829 of the Code, and it was error to strike out the evidence of those witnesses as to statements and conversations had between them and testatrix.

<p>1. Appeal — Non-reviewable Question op Law whether there is any Evidence. The question of law, whether there is any evidence supporting or tending to sustain a finding or verdict on a question of fact, is not re viewable in the Court of Appeals, when the judgment has been affirmed unanimously by the Appellate Division, whatever may be the form of the exception, whether to a ruling submitting the case to the jury, refusing a nonsuit, or to a charge that there is or is not evidence, as the case may be, to warrant a finding or verdict on the disputed question of fact.</p> <p>3. Non-reviewable Exception. When the Court of Appeals is pro-. hibited from reviewing a specified question of law, it necessarily follows that any exception taken at the trial, directed to that particular question alone, cannot be reviewed and is not available in that court.</p>

Appeal by Jason Rogers and Jay S; Rogers, remaindermen, by the trustees, and by infants interested in the proceeding, from an order of the Appellate Division of the Supreme' Court in the second judicial department, entered December 6, 1897, affirming a decree of the Surrogate’s Court of Westchester county. The nature of the proceeding and the facts, so far as material, are stated in the opinion.

Appeal, by permission,. from- an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 4,1899, reversing an order made at Special Term denying plaintiff’s motion to strike out defendant’s answer as for an alleged contempt and remitting the application to the Special Term for further hearing. The question certified for review is stated in the opinion. The defendant’s liability to repay or to deposit the money is wholly contractual.

Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 31, 1899, reversing a judgment in favor of defendant entered upon a dismissal of the complaint in an action tried by the court without a jury, and granting a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. There is no question that the Court of Appeals can review upon this appeal.

order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 10, 1898, and from the judgment entered thereon, reversing a judgment of Special Term and granting a new trial.

<p>; motion for reargument submitted December 11, 1899</p> <p>; denied January 9, 1900.)</p> <p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 12, 1898, reversing upon the law a judgment in favor of plaintiff, entered upon a decision of the court on a trial without a jury.</p> <p>The defendant George J. Magee died after the trial of the action, and his executors were substituted in Ms place.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>1. Tax — Review by Court of Appeals. Under section 353 of the Tax Law (L. 1896, ch. 908), the Supreme Court has power to review the facts upon which an assessment is based and may take the testimony witnesses and determine the facts anew, hut the Court of Appeals has no power to review the facts found by the Supreme Court.</p> <p>3. Corporation as a Person — under Tax Law, §§ 31 and 37 — Deduction of Debts. The word “ person ” as mentioned in sections 31 and 37 of the Tax Law, providing for deduction of debts from personal property, includes a corporation by virtue of the Statutory Construction Law, section 5, and a corporation is entitled, therefore, to have its debts deducted from the value of the property, in an assessment of its personal property for town, county or municipal purposes.</p> <p>3: Construction of § 12 of the Tax Law. The provision for the assessment of capital stock of a corporation at its actual value made by section 12 of the Tax Law does not conflict with or prohibit a deduction of the company’s indebtedness in determining such value.</p> <p>4. Conflicting Provisions of Tax Law — § 31 Superseded by § 12. The provision re-enacted in section 31 of the Tax Law, requiring an assessment of the amount of the capital stock of a corporation “ paid in or secured to be paid in” is superseded by the provision re-enacted in section 12, which requires the capital stock to be assessed at its actual value.</p> <p>5. Debt Incurred in Purchase of Good Will of a Business. Indebtedness incurred by a corporation for the purchase of the good will of a business cannot be deducted from the value of its taxable personal property, under section 6 of the Tax Law, which prohibits the deduction of -indebtedness incurred in the purchase of non-taxable property, since good will, though it constitutes property, is not taxable as such for general town, county, or municipal purposes.</p>

<p>Transfer Tax Act—as Affecting Bequest in Exercise of Power. Bequests in the exercise of a power by will, executed after the enactment of the Transfer Tax Act (L. 1892, ch. 399), but created by a will which took effect before the enactment of any taxable transfer law, are not subject to the transfer tax, since the source of title is the will creating the power, into which the names of the appointees must he read, and their right of succession vests, not at the time of the execution of the power, but at the time the will creating it went into effect.</p>

This action was brought to recover damages for the death of plaintiffs intestate, caused by the alleged negligence of defendant. At Jamaica the defendant’s tracks, four in number, run substantially east and west; a high fence separates the two southerly or east-bound tracks from the northerly or westbound tracks; on the northerly side of all the tracks is a station.

<p>Appeal — Question oe Law not Presented by the Record. Upon an appeal from a judgment of the Appellate Division, entered upon a unanimous decision that there is evidence supporting or tending to sustain the findings of fact of a referee, the Court of Appeals cannot review a question of law arising upon conceded facts not appearing in the findings of the referee.</p>

The facts, so far as material, are stated in the opinion. It was the duty of the superintendent of insurance to decide whether the name adopted by the relator so nearly resembled that of another corporation as to be calculated to deceive. (L. 1892, ch. 687, § 6; L. 1892, ch. 690, § 231.) The duty imposed upon the superintendent by section 6 of the General Corporation Law is a judicial and not a ministerial one.

Appeals from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 17, 1898, affirming a - judgment of the Special Term, adjudging that the… Held: descend, go, and be disposed of in the same manner that the same would have been held, descended, gone, and been disposed of if the real estate had not been sold,” respected and enforced for his benefit during his life.

This action was brought to recover damages for a personal injury alleged to have been caused by the negligence of defendant. The facts, so far as material, as stated in the opinions. The relation of master and servant existed between the defendant and plaintiff at the time and in respect to the very transaction out of which the injury arose.

The nature of the action and the facts, so far as material, are stated in the opinions. On this appeal plaintiff is entitled to the most favorable consideration of the evidence, and to the most favorable inferences to be drawn therefrom. ( Witherow v. Slayback, 158 N. Y. 649; E. F. Ins. Co. v. R. Ins. Co., 55 N. Y. 343; McNally v. P. Ins. Co., 137 N. Y. 389; Stuber v. McEntee, 142 N. Y. 200; Weil v. D. D., etc., R. R. Co., 119 N. Y. 147.) The defendant was grossly negligent.

This action was brought to recover damages for the alleged conversion by the defendants’ testator of a policy of life insurance. The facts, so far as material, are stated in the opinion. There was, at the time of the surrender of the policy, no valid or binding agreement in force to extend the time of payment of the note, there being no consideration for such an ágreement.

This action was brought to restrain the defendant from maintaining, or operating, its railway structure in East 42d street, in the city of New York, and to recover the damages which the plaintiff had sustained to his abutting property.

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

<p>1. Constitutional Law — Test of Statute. The enactments of the legislature must stand if they can be fairly so construed and applied as to avoid conflict with the Constitution.</p> <p>3. Constitutional Law — Title of Act. Where an act of the legislature deals with a subject not expressed in its title, and the unlawful provisions are separable from those that are lawful, and what remains is capable of being executed and stands complete in itself, the court should disregard the unconstitutional part and give force and effect to that which is constitutional.</p> <p>3. Title of Act—Act Unconstitutional in Part. The unconstitutionality of section 9 of chapter 861 of the Laws of 1863, entitled “ An act to authorize the construction of a railway and tracks, in the towns of West Farms and Morrisania,” within the meaning of section 16 of article 3 of the Constitution, as embracing a subject not expressed in the title of the act, which section attempted to authorize the construction of railways outside the limits indicated in the title, did not invalidate the eight preceding sections, as they are not so interwoven with it as to he incapable of separation .from it without affecting the whole scheme of the act.</p> <p>4. Railroad — Forfeiture of the Charter—Failure to Complete. The failure of the railroad company organized under chapter 361 of the Laws of 1863, to complete a road within ten years in the territory described in the unconstitutional ninth section of the act, did not bring it within the Railroad Law (L. 1850, ch. ,140, § 47, as amd.), providing that if any corporation shall fail to complete its road within ten years its corporate existence and powers shall cease, even if the latter section be deemed applicable, when a different period is fixed by a special act.</p> <p>5. Title of Act—Provisions Germane. The consolidation authorized by chapter 340 of the Laws of 1893, entitled “An act to amend chapter 361 of the Laws of 1863, entitled ‘ An act to authorize the construction of a railway and tracks in the towns of West Farms and Morrisania ’ and all acts amendatory thereof,”, is germane to the title of the original act, and, so, to that of the amended act.</p> <p>6. Constitutional Law — Private or Local Bills — Title and Subject. Provisions which might have been included in the original act without offending the provision of section 16 of article 3 of the Constitution, that no private or local bills shall embrace more than one subject, and that shall he expressed in the title, may be incorporated into it subsequently by amendment without a change of title.</p> <p>7. Private or Local Bills Granting Right to Lay Down Railroad Tracks. The prohibition of section 16 of article 3 of the Constitution, against private or local hills granting the right to lay down railroad tracks, is not violated by chapter 340 of the Laws of 1893, authorizing the consolidation of a railroad company organized under chapter 361 of the Laws of 1863, with any street surface railroad within a specified territory, notwithstanding that the consolidation under the act operated to confer upon the consolidated corporation the rights of the constituent corporations to lay tracks.</p> <p>8. Constitutional Law—Exclusive Privileges. The privilege conferred by chapter 340 of the Laws of 1893, authorizing the consolidation of the railroad company organized under chapter 361 of the Laws of 1868 with any street surface railroad company within specified limits, is an exceptional, hut not an exclusive one within the meaning of the Constitution.</p> <p>9. Surface Railroad — Consent to Laying Tracks. The failure of chapter 340 of the Laws of 1893, authorizing the consolidation of the railroad company organized under chapter 361 of the Laws of 1863, with any. street surface railroad company within certain territorial limits, to require the consent of abutting owners and of local authorities to the laying of tracks, did not render it unconstitutional, since the act does not purport to provide the procedure for the building of a road, but merely puts the consolidated corporation in the position of the constituent corporations with the exceptions expressly provided by sections 3 and 4.</p> <p>10. Street Railroad — Consents. The commissioner of street improvements of the twenty-third and twenty-fourth wards of the city of New York has not such exclusive control of the streets as under the General Railroad Law, section 91 (L. 1890, ch. 565), requires his consent in addition to that of the common council, for the construction of street railroads therein.</p> <p>11. Consolidation of Surface Railroad Companies. The fact that the other constituent corporations with which the Harlem Bridge, Morrisania and Eordham Railway Company consolidated pursuant to chapter 840 of the Laws of 1893, authorizing it to consolidate its ‘ ‘ capital stock and property with the capital stock and property” of any streét surface railroad company within certain limits, had not obtained the necessary consents to the building of the roads located by them, does not invalidate the consolidation, since each of them had capital stock and property.</p>

This action was brought to recover on a contract of fire insurance. The facts, so far as material, are stated in the opinion. The undisputed evidence showed that the so-called “ binding slip ” or “ binder ” was an instrument peculiar to the fire insurance business in the city of Hew York, constituting an application for insurance for which a policy was thereafter to be issued. It contained terms requiring an explanation.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The exhibition of a will and the testator’s signature attached thereto, and his declaration to the witnesses that it is his last will and testament, and his request .to the witnesses to attest the same, are a sufficient acknowledgment of his signature.

Appeal by the defendants, Sarah F. M. Greene and Frank Allen, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 15, 1898, which affirmed a judgment, construing the will of William H. Allen, deceased, entered upon a decision of the court on trial at Special Term. This action was brought to obtain a judicial construction of the will of William H. Allen, deceased.

The nature of the action and the facts, so far as material, • are stated in the opinion. Sections 14 and 33 of the Banking Law do not contemplate that shareholders and creditors in this state shall be paid more than their ratable share or proportion of the assets of the association, and the special fund must be so treated. (2 R. S. ch. 8, tit. 4, § Í9; Code Civ.

The nature of the action and the facts, so far as material, are stated.in the opinion. The machinery in this case was made a part of the real estate for the purposes of the mortgage, by express contract between the parties, the owner and the mortgagee.

<p>1. Powers of State Board of Canvassers. The duties of the state hoard of canvassers are purely ministerial and not judicial — they have no power to determine what was done in a previous year, to review and reverse the work of their predecessors, or to decide that there are vacancies in office.</p> <p>2. Refusal of Mandamus to State Board of Canvassers, when Relator Seeks Determination of Title to Office. When a statement, transmitted to the state board of canvassers, by a board of county canvassers, shows that votes have been cast to fill an office not included in a notice of the secretary of state, previously duly issued in accordance with law that certain offices are to be tilled at the annual election immediately following, while it is their duty to make and file a statement of the facts, they have no power to declare that a vacancy existed iu ■ the office, and that the person so voted for was elected; and a mandamus to compel them to grant him a certificate of election thereto is properly denied.</p> <p>8. Remedy of Relator. In such a case, where it appears that the office is in the possession of another claiming title thereto, the remedy of the relator is by an action in the nature of quo warranta, brought by the attorney-general against the person who, it is claimed, unlawfully holds the office.</p>

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The surrogate erred in refusing to find as requested, that the corporation of Yale College was a non-stock benevolent corporation.

This action was brought to recover the sum of $3,925.71, with interest from December 30th, 1891, upon a promissory note for that amount, dated that day, signed “ Weston Brothers,” and payable eighteen months after date to the order of George E. Ramsey, at the First National Bank of Olean, for value received, with interest. It was indorsed by the payee as first indorser, and by the firm of W. H. & D. C. Conklin as second indorser.

<p>1. Compromise Agreement Made under Direction of the Court — Construction as to Interest. An instrument of compromise, made under the authority of the Supreme Court, by a receiver of an insolvent savings bank, with its trustees, who had been sued for waste and mismanagement of its assets, is to be deemed to have been made simply in aid of the will of the court, is not an ordinary contract, nor necessarily subject to those rules of law which make interest allowable only because of some contract express or implied, or by virtue of some statute, or on account of the default of a party liable to pay.</p> <p>2. Interest — Reimbursement of Trustees under Compromise Agreement. Where such an instrument transfers to the trustees certain real estate of the bank in consideration of their paying a certain percentage of its debts, gives them a' power of sale and further provides that they shall be reimbursed for their outlay before accounting to the receiver for any surplus, they are, upon such an accounting, entitled to interest on their advances made for the debts of the bank and upon their expenses, incurred in the management of the property before a sale of it was made by them, although no express provision relative to such interest is contained in the instrument.</p> <p>3. Interest. Interest is allowable under such an instrument, in ordei to fully indemnify the trustees, is justified by the nature of the transaction or by usage and custom, and may further be deemed a proper exer cise of equitable discretion.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The agreement between the parties having been executed and acted upon for upwards of three years should hot be condemned as being contrary to or against public policy.

The nature of -the action and the facts, so far as material, are stated in the opinion. The certificate of deposit given by the Chemung Canal Bank to the deceased, Catherine Sullivan, was a valid contract between them, made for the benefit of the niece mentioned in it, and she has the right to enforce that contract.

The plaintiff brought the action for an accounting with respect to certain securities, pledged with him by the company to secure the… Held: as a conclusion of law, that the plaintiff and the other parties, .who were interested with him in the distribution of the fund, were entitled to share equally in its distribution. The directors of a corporation are managing agents for its stockholders, and are quasi trustees for both the stockholders and creditors. (2 Story’s Eq.

In 1879, the plaintiffs’ father, James E. Boyer, died, intestate and seized of certain real estate in the city of Rochester. He left him surviving a wife and two children, the latter being these plaintiffs. In 1882, the mortgagee in a mortgage, made by Boyer and his wife to secure the payment of his bond, instituted foreclosure proceedings; making Mrs. Boyer and the children defendants. The latter were then infants and a guardian ad litem was appointed for them.

Cross-appeals, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 31, 1899, modifying, and as modified affirming, a judgment entered upon a decision of the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion.

This action was brought for the cancellation of a bond and mortgage made by the plaintiff for the purpose of indemnity to two of the defendants on the ground that the obligation for which the bond and mortgage was given as security has been released and discharged. The facts, so far as material, are stated in the opinion. The Court of Appeals has jurisdiction to review the order of the Appellate Division. (Hirschfeld v. Fitzgerald, 157 N. Y. 176; Otten v. M. Ry.

<p>Appeal from a judgment and order of the Appellate Division of the Supreme Court in the first judicial department, entered June 20,1898, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Terra.</p> <p>This action was brought to recover the balance of a sum of money deposited by the plaintiff with the defendant, and which the defendant promised to pay. The acknowledgment of the deposit and promise is contained in a written instrument dated June 2, 1890, to which the Consolidated Electric Storage Company (the plaintiff) was party of the first part, the Brush Electric Company party of the second part, and the Atlantic Trust Company (the defendant) party of the third part.</p> <p>The further material facts are stated in the opinion.</p> <p>The defendant, by the terms of the tripartite agreement, was entitled to judgment in its favor against the plaintiff’s claim, both upon the pleadings, which admitted, and upon the evidence, which showed, that no money was received by the defendant from the plaintiff. (Stevenson v. Kaiser, 29 N. Y. Supp. 1122; Gates v. Dundon, 19 N. Y. Supp. 390; Bernstein v. Crow, 22 Misc. Rep. 99; McQueen v. Lockwood, 79 Hun, 612; Cauchois v. Proctor, 1 App. Div. 16; Hutchins v. Van Vechten, 140 N. Y. 115; Brady v. Hutkoff, 13 Misc. Rep. 515; 155 N. Y. 681; Potter v. Smith, 70 N. Y. 299 ; Holmes v. Jones, 121 N. Y. 461; Cromwell v. Hughes, 12 Misc. Rep. 372.) Flo money was received by the trust company at all. FTo money was received by it from the traction company. There was merely an exchange of promises; that of the traction company contained in a promissory note, and that of the defendant in a certificate of deposit. There was no borrowing, no loan. All that occurred was a mutual promise between the traction company and the trust company, not performed on its part by the traction company. (Dunning v. Leavitt, 85 N. Y. 30; Crowe v. Lewin, 95 N. Y. 423; Brisbane v. Beebe, 48 N. Y. 631; Wheat v. Rice, 97 N. Y. 296; F. Nat. Bank v. Chalmers, 144 N. Y. 432; 2 Daniel on Neg. Inst. [4th ed.] § 1698 ; 1 Morse on Banks, § 297.) The tripartite agreement,cannot be turned into a positive contract by the trust company to pay to the storage company $215,000, less payments to the Brush Company, resting for its support upon the transaction between the traction com-pony and. the trust company. (Emmett v. Penoyer, 151 N. Y. 564; Hull v. Adams, 1 Hill, 601; Delamater v. Bush, 63 Barb. 168; Riley v. Riley, 83 Hun, 398; Graves v. Porter, 11 Barb. 592.) The decision upon which judgment was entered did not correspond either with the complaint or with the tripartite agreement. (Corning v. Corning, 6 N. Y. 97; Shephard v. Little, 14 Johns. 209; Hebbard v. Haughian, 70 N. Y. 54; Bowen v. Bell, 20 Johns. 338.)</p> <p>There is no question open to review in this court. (Amherst College v. Ritch, 151 N. Y. 282; Petrie v. Trustees, etc., 158 N. Y. 458; Ayers v. D., L. & W. R. R. Co., 158 N. Y. 254; Meserole v. Hoyt, 161 N. Y. 59; People ex rel. v. Barker, 152 N. Y. 417; Rosenstein v. Fox, 150 N. Y. 354 ; Health Dept. v. Weekes, 22 App. Div. 110; Harden v. Dorthy, 160 N. Y. 39 ; Trustees, etc., v. Vail, 151 N. Y. 463; Stokes v. Mackay, 140 N. Y. 640.)</p>