Volume 15 — New York Miscellaneous Reports

<p>New trial — Newly-discovered evidence.</p> <p>To warrant a new trial on the ground of "newly-discovered evidence, it must be shown that such evidence is material; that it has been discovered since the trial; that it could not by the exercise of reasonable diligence have been sooner, discovered, and that it is so decisive in. character as to make it reasonably certain that it would change the result on another trial.</p>

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

<p>Action- for partition.</p>

<p>1. Brooklyn — Board of education is -a .separate municipal corporation. '</p> <p>The board of education of the city of Brooklyn is ,a separate municipal corporation and the city treasurer is its sole financial officer.</p> <p>3. Same— Mechanics’ liens.</p> <p>Notice .of lien under a contract made with the board of education of the city of Brooklyn must be served upon the city treasurer, not upon the comptroller.</p>

<p>Action to recover the amount of a life insurance policy.</p>

<p>Appeal — Evidence.</p> <p>The admission of evidence which was incompetent on the ground for which it was offered cannot .be sustained on appeal upon a i different ground. • .</p>

<p>1. Railroads—Repair' wagon.</p> <p>The repair wagon of a street railroad has no right.of way over other vehicles.</p> <p>2. Negligence — Collision—Repair wagon.</p> <p>While defendant’s repair wagon was being driven on its track at the rate of ten or twelve miles an hour, its driver turned it to the left to pass plaintiff, who was driving in advance, and at the same time plaintiff slightly turned his horse to pass in the same direction into a side street, whereupon a collision occurred. Held, that the collision was due to the rapid rate at -which the repair wagon was driven and the negligence of its driver in failing to slow ' down to prevent the accident.</p> <p>3. Same — Drivers oe vehicles.</p> <p>- A person driving a wagon in a street has the right to turn off in a</p> <p>• side street even if a wagon is behind him, and is not bound to antici-' pate that the wagon in the rear will turn off suddenly and run him</p> <p>• down, or to know that such, wagon is being driven at. a reckless rate of speed.</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>. 1. Husband and wife — Separation;</p> <p>A contract between husband and wife providing for the payment' of a weekly allowance on -condition that the parties live separate as if unmarried is contrary to public policy, arid will not be enforced by the courts.</p> <p>3. Same.</p> <p>Such a contract is not authorized by chapter 59.4, Laws of 1893, giving a wife the right .to contract with her husband.</p>

Motion to punish defendant as for contempt for refusing to answer questions propounded to him upon an examination before trial.

<p>■Costs-^Motion por new trial on case.</p> <p>Where a motion is made upon a case and exceptions for a new trial on the ground of newly-discovered evidence, “and for such other and further relief as may be just,” the prevailing party is entitled to costs as on a motion for a new trial on a case under section 8251 of the Code.</p>

<p>1. Negligence—Hotel Keeper—Injury oe Guest.</p> <p>Plaintiff, while a guest in defendant’s hotel, was injured by the breaking of the machinery of a passenger elevator at a place where it had become weakened by corrosion. It was shown that the elevator had been in use 14 years, and that, when last inspected at defendant’s instance, the parts breaking were not examined. Held, that defendant would not be relieved from liability by showing a compliance with the ordinary mode of inspection, but that the question of negligence was one of fact, under all the evidence.</p> <p>2. Inn Keepers—Duty to Protect Guests.</p> <p>An hotel keeper owes it to his guests to exercise reasonable care for their safety, and he cannot delegate this duty to another, so as to relieve himself from liability for its nonperformance.</p>

<p>Lease—Deposit as security.</p> <p>Where a deposit is made as security for the rent and fulfillment of' the conditions of a lease, and the lease provides for its return at the end of the lease if its terms were complied with, such deposit is not applicable to the rent for the last month, and the .tenant is not entitled to its return where he has been dispossessed for nonpayment in advance-of the rent for such month.</p>

<p>Application for an order fixing the value of the support and maintenance of John. Holsworth, a patient, and to direct the payment of the sum so determined by the committee of his father.</p>

<p>Will — Trust.</p> <p>A will after giving certain legacies and creating a trust gave various sums to benevolent and religious institutions which, in fact, failed because of testatrix’ death within one month after the execution of the will. The last clause of the will provided: “ If for any reason .any legacy or legacies left by my will * * * shall lapse or fail, or for any cause not take effect in whole or in part, I give and bequeath ■ the amount which shall lapse, fail or not take effect absolutely to the persons named as my executors. In the use of the same I am satisfied that they will follow what they believe to be my wishes. I impose upon them, however, no conditions, leaving the same to them personally and absolutely, and without limitation or restriction.” Seld, that the latter clause created no trust ex maleficio, but that the executors took the residuum as their own and had full power to dispose of it as they wished, and to place it where they knew the testatrix wished it to go.</p>

Motion by the plaintiff for an injunction to restrain any interference by the defendant with the plaintiff’s railroad and property during the pendency of the action.

<p>1. Acoged and satisfaction—Consent of creditor essential to.</p> <p>There, can be no accord and satisfaction Of a liquidated claim without the consent of the creditor.</p> <p>2. Same. .</p> <p>Prior to a sale of goods one of the plaintiffs told the defendants-that if their sales agent got hard up and wanted anything to let him have it and they would see that it was paid. The agent then owed defendants a bill and subsequently made additional purchases. Thereafter defendants, in payment for the goods purchased by them, sent to the plaintiffs the bill against their agent and a check for the balance, ■ and plaintiffs, in reply, wrote that they had applied .the check on. account and claimed the balance to be still due. Held, that there was no accord and satisfaction of the claim for the goods sold to the defendants. '</p>

<p>1. Master and servant—Negligence. '</p> <p>It is the duty of the master to furnish a. safé [Hace-for his servants to work, and" supply them with proper and safe tools, and appliances, and to keep them in a reasonable condition Of, repair,., and if he fails in this respect he is liable to the servant for any injpry which he has ■ received through such neglect. • ....... ......</p> <p>¡3. Same—Assumption of risk.</p> <p>But this rule does not apply where thé servant has knowledge that the machinery is out of. repair, or has- the same knowledge as the inaster that there are defects which render it unsafe tó use thé machinery; in such casé, if he is willing to use the defective machinery, knowing it to be such, he assumes the risk-thereof, and is not entitled to recover for an injury caused thereby.</p> <p>3. Same. .</p> <p>•While operating 'an elevator in defendant’s building plaintiff was injured by a load of carriage seats falling -upon him from the floor ahoye; where they were dumped into the elevator shaft by another employee who saw the door open and. supposed the elevator to be at . that floor. Plaintiff had complained the same day to the master ■ mechanic that the doors did not -close properly, and on his passage down ■ just previous to the • accident had seen that the door at that-floor did not close. Held, that .he assumed the risk of its operation, and was guilty- of negligence in not closing the., door, and was- not entitled to recover.</p>

. . The purpose of this proceeding is to annul a-determination of the defendants made ajid evidenced by preambles, and resolutions July 5, 1895, prescribing the manner in which the patrolmen of the police department of the city of Buffalo shall perform their duties.

<p>Demurrer to the complaint.</p>

Appeal by the defendants from a' judgment of the Municipal Court of Buffalo, rendered and entered in favor of the above-named respondent and against the above-named appellants in summary proceedings for the removal of said appellants from certain premises in the city of Buffalo.

<p>Appeal—Finding upon conflicting evidence.</p> <p>"A finding as to fraud upon conflicting evidence will not be disturbed on appeal, unless there is a clear preponderance of evidence against it:</p>

<p>Appeal from judgment in favor of the plaintiff setting ' aside and canceling a local assessment roll for paving Forest avenue. " , 1</p>

<p>1. Negligence Contributory — Motorman of car approaching railroad tracks.</p> <p>The motorman of a street car about to cross steam railroad tracks is bound, himself, irrespective of any arrangement with the conductor of the car, to look out for approaching trains, and if he fails to do so, or seeing one approaching neglects to stop his car to wait for it to-pass, he is guilty of contributory negligence as matter of law.</p> <p>3. Same — Implied.</p> <p>. ' The negligence of the conductor of the car, who has preceded it, to signal the ear to stop may be attributed to the motorman.</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>Motion for a new trial by plaintiff upon a case and exceptions ordered to be heard at the General Term in the first -instance.</p>

<p>Appeal by defendant from an order granting plaintiff’s motion for a new trial made upon the minutes of the court.</p>

<p>Demubbeb to the complaint.</p>

Appeal by defendant from a judgment entered upon the .verdict of a jury and from an order denying a motion for a new trial made upon the minutes of the court.

<p>1. Master and servant Compensation—Evidence.</p> <p>In an action to recover a balance claimed to be due upon an alleged increase of salary, where the defendant counterclaims a judgment recovered for moneys loaned several years before to enable plaintiff to move from where he previously lived, evidence of What it cost the plantiff to secure a release from a lease at such place to enable him to enter defendant’s service is inadmissible.</p> <p>2. Same.</p> <p>Where the agreement for an increase of salary is conditioned Oh the business turning Out well, evidence as to losses in the business, whether arising from bad debts or otherwise, is competent.</p>

Oertiorari issued out of the Superior Court, duly attested, directed to the mayor and other persons constituting the board of police of the city of Buffalo, commanding them to return to the clerk of this court all their proceedings, doings and actions relative to the removal of the relator, John Doody, from his office of doorman of police of the city of Buffalo. e

<p>1. Negotiable paper — Evidence — Transactions avith deceased TRANSFEREE. •</p> <p>In an action by a dona fide holder of a promissory note against the maker, where the defense is that the note was accommodation paper ■ and payment, evidence of a conversation between one of the defendants and an. intermediate transferee, who has since died, in pursuance of which a conveyance of property was made in payment of the note, is inadmissible under section 829 of the Code.</p> <p>2. Same.</p> <p>Declarations of a former holder of negotiable paper are not admissible to affect the title and rights of a subsequent holder and owner thereof.</p>

<p>1. Brokers — Right to commissions.</p> <p>A broker is entitled to his commissions where the party produced by him and his principal have entered into a contract, although such contract is indefinite and vague or does not provide for all the details. •</p> <p>3. Same—Burden of proof.</p> <p>Where such a contract is produced, but the defendant claims that its execution was conditional, he is required to establish that fact by a fair preponderance of proof.</p>

<p>Trademarks—Torekht. words.</p> <p>A foreign word, derived from a language hardly known in this . country, and.not incorporated into the- English language, may be : exclusively appropriated as á trademark although originally descriptive of the article to which it is applied.. ., .</p>

<p>Habeas corpus to discharge relators from custody under a warrant of extradition.</p>

Action to recover the proceeds of property alleged to have been purchased from plaintiff by means of fraudulent representations.

<p>1. Benefit societies ■—Forfeiture for nonpayment of dues.</p> <p>Failure of a member of a membership life insurance corporation to pay the annual dues after due notice thereof has been given operates as a forfeiture of his membership and policy.</p> <p>2. Same—Waiver.</p> <p>Relator, who was a member of the defendant association, failed to pay his annual dues at the time fixed therefor, although he had been given two months’ notice thereof. Subsequently, in response to an inquiry as to whether the moneys had been sent and notice that if not a reinstatement would be necessary, he sent a check for the amount, which was deposited in the suspense account. About the same time he received a mortuary call, which stated that neither such notice or' the acceptance of the money would be held to waive any forfeiture by reason of nonpayment of any previous sum when due. The amount of this call was sent and also placed in the suspense account. Relator subsequently refused to sign an application for reinstatement, . and the association tendered back the moneys so received by it. Held, that there was no waiver of the forfeiture on the part .of the association.</p>

<p>1. Parties—Defect of. ' •</p> <p>Where a defect of parties plaintiff or defendant appears upon the face of the complaint, an obj ection thereto must be taken by demurrer.</p> <p>2. Bonds—Parties.</p> <p>An action upon a bond which is several, and not joint or joint and several, may be maintained against either 'surety without joining the rest.</p> <p>8. Same — When sureties liable for full penal sum.</p> <p>• Where the sureties upon a bond for the faithful performance of duty by a trustee do not limit their liability to the amount of the estate, but to a specified penal sum, they are liable to the full amount thereof if the loss equals that amount. -</p> <p>4. Same. ■</p> <p>In- such case, however, they are entitled to credit for any sums paid - hy them to the beneficiary.</p> <p>5. Same — Contribution.</p> <p>Where one of several sureties has been compelled to pay the amount for which he was liable on the bond, he is entitled to contribution from the other sureties.</p>

<p>Action to restrain the defendants from canceling a written* contract of partnership or joint enterprise.</p>

<p>1. Contempt — Attachment.</p> <p>A warrant of attachment for contempt, need not recite the contempt nor any of the proceedings upon which the warrant rests.</p> <p>0. Same. -</p> <p>Disobedience of ’an order requiring the payment of money into court, or, to an officer thereof, except where it is due upon contract, or-for a breach thereof, may be punished as for a contempt, although the amount thereof could be collected upon execution. -</p> <p>3. Same—Habeas oobpüS: '' • . . '</p> <p>• Where there is no jurisdictional defect the court will refuse to review the mandate of another court of general jurisdiction on habeas corpus.</p>

Motion to cancel certain satisfactions of judgments executed by the attorneys of record after a substitution of. attdrneys,. and by the: judgment creditor. While. in the employ of a firm of attorneys, Mr. Baker . procured six judgments' in -their name as attorneys of -¡record against the defendant association.

<p>1. Judicial sale — Referee cannot correct erroneous description.</p> <p>A referee appointed to sell real property has no power, without authority from the court, to correct an erroneous description óf the premises.</p> <p>2. Adverse.possession.</p> <p>. To establish title by adverse possession, it must be shown that the party and his grantors held the land adversely and in open hostility to the true owners.</p> <p>3. Vendor and purchaser—Title.-</p> <p>In an action to compel performance, by the purchaser of a contract for the sale of land it appeared that plaintiff claimed title through a salé on partition; 'that the original'deeds of the property described the premises as commencing at the northwest corner of Grand and First (or 'Chrystie) streets, which would place about four-fifths of the premises in Grand street, and that the referee, without authority-from the court, described them in his deed as. commencing at the southwest corner. It also appeared that about one foot of the western boundary, as described in the contract, was not covered by the deed, but the plaintiff claimed to hold the samé by adverse possession. Held, -that the record title was so defective that the purchaser should not be required to complete.</p>

<p>1. Corporations — Transfers by insolvent.</p> <p>The statute forbidding transfers of its property by a corporation in contemplation of insolvency applies where there is a condition of present insolvency.</p> <p>2. Same.</p> <p>The word “insolvency” as used in the statute imports a general inability to pay obligations as they mature in the regular course of business. .</p> <p>3. Same—Judgment. ,</p> <p>The suffering of a judgment by an insolvent corporation, with the intent of giving a preference, is within the statute.</p> <p>-4. Same.</p> <p>The facts that the creditor,' although not a trustee, substantially , "■ controlled the proceedings of the board; that at his request and expense the secretary went to another state to be served with process in the action against the company and left the papers with "an attorney. tó whom he was introduced by the creditor’s .attorney, are suffi.- . . cient to show that the.judgment was' suffered with intent to give a preference. • ; '</p> <p>5. Same—Party obtaining illegal preference may be compelled ■ TO ACCOUNT.</p> <p>■ Where a creditor of a corporation has, by means of a judgment recovered in a foreign state, obtained a preference forbidden by our statutes, the property thus' acquired is affected with a trust, ánd the creditor may be compelled to account therefor although the judgment is not set aside. . ,</p>

<p>Motion by the plaintiffs to strike out defendant’s answer as sham. '</p>

<p>1. Attachment — Vacation—Practice. -</p> <p>An application, on notice, to vacate a warrant of attachment on the papers upon which it .issued, may be heard at the Special Term of the Supreme Court (Part II) for the transaction of ex parte business. ■ .</p> <p>2. Same — Statement of grounds. • !</p> <p>• The statement in a warrant of attachment, that the defendant •“ has. assigned, disposed- of or secreted his property ”'is a,recital of ong class only of the grounds set forth in section 686 of the Code, and is k sufficient recital of the “ ground of the attachment ” as required by section 641 of the Code.</p>

<p>Motion to vacate an order for the examination of the defendants before trial.</p>

<p>Settlement of proposed case on appeal.</p> <p>The opinion states the material facts.</p>

Motion to continue, injunction restraining the defendant, the board of education of the city of Brooklyn,. from sum- marily dismissing the plaintiff'from his place as a teacher in the public schools.

Action to foreclose a mortgage given by the defendants to the plaintiff upon premises situate in Erie county and fór a ' judgment of deficiency upon a hbnd and note for which the mortgage was given as security.

<p>1. Loan associations—Withdrawals. '</p> <p>Where the articles of a loan association provide that where the notices of withdrawal exceed the weekly receipts they shall he numbered in the order they are received and paid in the same order as. fast as the receipts will permit, a member who has served such a notice cannot maintain an action against the association for his money until there are funds in its treasury legally applicable to his claim in accordance with such provision.</p> <p>2. Same — Amendment of articles.</p> <p>The mere fact that there has been an amendment of the articles; which did not prejudice his rights, does not authorize the maintenance of such an action.</p>

<p>Motion for a writ of mandamus to compel the restoration of the applicant to office as a clerk in the tax and assessment bureau of the department of finance of the city of Brooklyn.</p>

<p>Contempt—Contents of obdeb.</p> <p>An order adjudging a party guilty of a civil contempt which omits to state that it had been determined that the misconduct defeated, impaired, impeded or prejudiced the rights or remedies of the other party to the proceeding is fatally defective.</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.</p>

<p>Pleading — Foreign corporations.</p> <p>The complaint in an action against a foreign corporation brought in the City Court of New York need not allege that the plaintiff is a resident of this state.</p>

Appeal by the defendant from a conditional order, made in each of the above two actions, opening the judgments obtained by default and allowing the defendant to come in and defend the action, dated September 27, 1895, and also from the final order in said actions, made October 8, 1895, denying the-defendant’s motion to open the default because of defendant’s, failure to comply with the conditions imposed upon it by the. first-named order.

Appeal by the defendant from an order adjudging him guilty of contempt of court in having disposed of his property in violation of an injunction order in supplementary proceedings instituted under the provisions of section 2435 of the Code of Civil Procedure.

<p>Appeal from order confirming report of a referee in favor • of defendant, vacating an attachment.</p>

<p>Trial — Refusal to answer questions of jury during their DELIBERATION.</p> <p>After the retirement of a jury gne of them sent certain questions in writing to the court, who indorsed on the paper, in the absence of counsel, a statement that he had no further charge to make. Held, that this amounted only to a refusal to answer the questions and was not an irregularity which would require a reversal.</p>

<p>1. Appeal—Waiver op defects in service of process.</p> <p>The question of waiver of defective service by a general appearance after appeal was taken from an order,ref using to set the service aside, can only be brought before the appellate court by motion to dismiss the appeal.</p> <p>.2. Jurisdiction—Action between nonresidents.</p> <p>The City Court has jurisdiction of an action between nonresidents where the plaintiff has an office within the city of Mew York.</p> <p>3. Service—Exemption from—Witness.</p> <p>A nonresident witness forfeits his exemption from service of process by unnecessarily prolonging his stay and attending to business of a private nature.</p>

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

<p>Appeal from order denying motion for leave to serve a supplemental answer.</p>

<p>Appeal from judgment entered upon order overruling demurrer to answer.</p>

<p>1. Evidence—Parol, to explain written contract.</p> <p>Where the nature .of the work to be done requires that some one should furnish the eontra'ctors with information necessary to enable them to perform it, and the contract fails to show whose duty it was to do so, parol evidence is admissible to establish that fact.</p> <p>2. Contract—Breach.</p> <p>A failure to furnish contractors with necessary information, by reason of which they are unable to complete, constitutes a breach of the contract, and justifies a recovery by the contractors of the damages sustained thereby.</p> <p>8. Paiitnekshif — Evidence.</p> <p>Testimony of one of several defendants tending to prove a copartnership between them is admissible-to corroborate other testimony upon that question. 1</p>

<p>1. Pleading — Reply — Counterclaim.</p> <p>In an action by an attorney for professional services the answer setup a counterclaim for moneys collected by plaintiff for defendant in another action which he retained. The reply denied the counterclaim, but admitted the receipt of such money and alleged that it had been applied upon services rendered for defendant in actions and proceedings other than those alleged in the complaint. Held, that the reply-set forth a defense and not a counterclaim.</p> <p>2. Same — Attorneys.</p> <p>An attorney who sues for services rendered in a specific action need not allege in his complaint services rendered for the defendant in other actions and proceedings during the period covered by the complaint, which were independent of the services sued for and which have been paid, but may plead the application of moneys thereto in answer to a counterclaim for conversion of such moneys.</p>

<p>Appeal from an order made át a Special Term denying the defendant’s motion to vacate and set aside a judgment entered herein by default, together with the execution issued thereon, unless the defendant pays to plaintiff’s attorney the costs and disbursements of the action besides the sheriff’s fees; and that in default of the payment of such costs and disbursements plaintiff be at liberty to collect the same by levy and sale under the execution.</p>

Appeal by the defendant from a judgment in favor of the plaintiff, entered upon a verdict, and from an order denying the defendant’s motion to set aside the verdict and for a new trial.

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

<p>1. Statute op Frauds—Sale—Acceptance.</p> <p>An acceptance, either before or after delivery, is suffioient to take a sale of chattels out of the Statute of Frauds.</p> <p>2. Same—Acceptance, when a question por jury.</p> <p>Where the evidence as to acceptance of the goods is conflicting the question should he submitted to the jury.</p>

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

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

<p>1. Landlord and tenant — Negligence.</p> <p>A landlord is bound to keep the stairs leading to a cellar storehouse, intended for the use of his tenants, in a reasonably safe condition, and, for a failure to do so, is liable to his tenants for any injury to them occasioned thereby.</p> <p>3. Same — Contributory negligence.</p> <p>A tenant is not guilty of contributory negligence in failing to carry a light with him when using such stairs.</p> <p>8. Same — Constructive notice.</p> <p>The existence of a defect in a cellar stairway for three months is sufficient to charge the landlord with constructive notice thereof.</p> <p>4. Same—Damages.</p> <p>Where the plaintiff was a peddler who supported his family by such employment, an award for loss of wages is proper.</p>

<p>1. Lease—Guaranty or payment—Pleading.</p> <p>Where a guaranty of payment of rent under a lease to two tenants expressly provides that each tenant shall pay one-half the rent, and that each surety shall he hound only for the share of one of the tenants respectively, the liability of each surety is several and distinct, and an action cannot he maintained against them jointly.</p> <p>3. Pleading—Dismissal op complaint.</p> <p>A motion to dismiss the complaint for misjoinder of causes of action may properly he made at the trial, where the defect then appears for the first time.</p>

<p>Appeal from order approving an undertaking for the return of property taken by the sheriff on replevin.</p>

<p>Appeal by the defendant from a judgment in favor of the plaintiff, entered upon a verdict, and from an order denying the defendant’s 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>Money loaned.</p> <p>In an action for money loaned there was evidence tending to show that the alleged loan was made by an exchange of checks, the one given by the plaintiff being made to the order of, and indorsed by, the defendant, which was paid, while the one received by him was made by defendant to the order of its president individually, and indorsed by him, which was not paid, but that the president subsequently obtained possession thereof by giving bonds owned by him individually as collateral for the loan. The president testified that the loan was made to him individually, and that he took up plaintiff’s check and gave the bonds in lieu thereof. Held, that a motion for a direction of a verdict for defendant was properly denied, and that a verdict for plaintiff was not against the evidence or the weight of evidence.</p>

Motion to continue injunction. The action was brought to restrain the defendant Snitzpan, justice of the peace elect, and Leonard E. Welles, police commissioner of the city of Brooklyn, from using force to oust the. plaintiff, who claimed that his term had not expired, from the office and court room of a justice of the peace of the city of Brooklyn.

<p>1. Railroads—-Lease.</p> <p>As the laws of this state permit a railroad corporation to lease itself to another corporation, a court may not consider any reasons which public policy may seem to suggest against it.</p> <p>2. Equity—Relief will not be granted where the action is INTENDED TO COERCE COMPLIANCE WITH OTHER DEMANDS. '</p> <p>No relief will be granted to the plaintiff in an equitable action where it is made to appear that the main object of the action is to coerce the defendants, or others interested, into yielding to demands which are not embraced in the relief prayed for.</p> <p>8. Corporations—Liability of directors for waste.</p> <p>The directors of a corporation, which owns all the shares of stock of another corporation, are not answerable for acts of spoliation and waste by the directors of the latter company, although they chose such directors by reason of such ownership of the stock.</p>

<p>Application for discharge on habeas corpus from arrest.</p>

- Action to have the record of satisfaction of two -mortgages . / canceled and the plaintiff adjudged the owner thereof and for their foreclosure. - ' ■

Action to set aside certain bills of sale on the ground that they were intended to operate as -chattel mortgages, and as such were void as to creditors because not filed.

<p>Appeal — Motion to dismiss. ,</p> <p>Where an appeal to. the Court of Appeals has been taken, and perfected, a motion to dismiss the same can be made only in that, court.</p>

<p>Action to set aside certain conveyances of real and leasehold property.</p>

Motion by Nicholas F. Palmer, a subcontractor under the corporation, for payment by the receive,!’ of the amount due to him under his subcontract.

<p>New York city — Section 1104 oe the Consolidation Act, does not APPLY TO ACTIONS EX DELICTO.</p> <p>Section 1104 of the-.New York Consolidation Act, 'prohibiting the commencement of actions against the city until thirty days after the ■ presentation of the claim to the comptroller, does not apply to actions for personal injuries alleged to have been caused by negligence.</p>

<p>1. Partnership—Receiver.</p> <p>Where the articles of copartnership provide that in the event of the death of either partner the business shall be closed by the surviving partners as soon as possible, but without prejudice to its interest, of which the surviving partners shall be the judges, a receiver Will not be appointed to wind up the business where there is no charge of fraud against the surviving partners, and no proof that they are Wasting the assets or are insolvent, and the delay is not unreasonable.</p> <p>3. Same — Firm name.</p> <p>The right to continue the use of the firm name belongs to the surviving partners and cannot be transferred with the good will of the business.</p>

<p>Demurrer to the second and third defenses set- up in the answer.</p>

<p>1. False bepkesentations.</p> <p>. Actionable fraud consists in misrepresentation or concealment as to the existence of nonexistence of some fact or circumstance, and cannot be predicated upon a mere expression of hopes, expectations or beliefs:</p> <p>2. Same—Value.</p> <p>A representation, made to induce the making of a loan. on the</p> <p>. security of a leasehold estate, that the party had á cash customer who was and would always, be ready and willing to purchase the lease at a bonus of §25,000 cash, involves the assertion of an existent fact, and if false is actionable.</p> <p>3: Same—Pleading—Damage.</p> <p>A complaint in an action for false representations inducing the making of a loan on the security of a leasehold estate, which does not allege that the debt is due and unpaid ; that the lease is not abundant security for the debt or that the debt will not be paid promptly at maturity, does not state facts sufficient to constitute a cause of action. . • ,</p>

<p>1. Pleading -^Scandalous, irrelevant or redundant.</p> <p>A motion to strike out matter from an answer as scandalous, irrelevant and redundant must be decided upon the pleading itself.</p> <p>2. Landlord and tenant — Eviction—Evidence.</p> <p>A defense of eviction from a flat in an apartment house by reason of the landlord’s maintaining a' disorderly house in and about the premises demised to the defendant is not insufficient in law, and under it evidence of such fact is admissible, although such disorderly house was maintained in other parts of the’building, as the landlord of such a building retains control of the hallways and staircases.</p>

<p>Replevin — Undertaking por return of goods — Withdrawal of surety. ,</p> <p>After an undertaking for the return of property takén'in replevin proceedings to the defendant has heen approved after examination " of the sureties, one of such sureties cannot be permitted to withdraw except upon notice to his co-surety and the defendant and with the 1 consent of the plaintiff.</p>

<p>Negotiable paper—Evidence — Fraud.</p> <p>In an action upon a promissory note by a transferee thereof against the maker, where the defense is fraud in its inception or diversion, the- defendant may prove such fraud or diversion without showing that plaintiff had knowledge thereof, and upon such proof being given the burden rests upon the plaintiff of showing the bonafides of his holding.1</p>

<p>Appeal by plaintiff from judgment for defendant rendered by the court without a jury.</p>

<p>Appeal from order sustaining a demurrer to the complaint.</p>

<p>1. Pleading—Action upon expiiess covenant to pay bent.</p> <p>The complaint in an action upon an express covenant to pay rent need not allege that defendant occupied or enjoyed the premises nor the ownership of such premises.</p> <p>3. Same.— Pebfobmanoe of conditions.</p> <p>Performance of the conditions of the contract on plaintiff's par need not be alleged where the complaint does not set up any of the conditions.</p> <p>3. Same.</p> <p>A complaint will not be held bad on demurrer because the term of letting is not definitely stated Where sUch term can be inferred therefrom with reasonable certainty.</p>

<p>Sebvice—Of papebs on attobney.</p> <p>A deposit of papers into an attorney’s office through a. slit in the ■ • door, at a time when the office is closed, where there is no letter box in said office, is insufficient to constitute a service of such papers, and is not binding upon the attorney or his client.</p>

<p>Adjoining owners—Negligence — Overflow of neighboring land.</p> <p>An owner of land who, by the construction of extra ditches, accu-' mulates water in such quantities that an existing culvert cannot carry - it off, but throws it on his neighbor’s land, 'is liable for the damage occasioned thereby. ■.</p>

<p>1. Landlord and tenant—Rent.</p> <p>• -In an action upon an express covenant to. pay rent-the plaintiff need not allege or prove that defendant occupied or enjoyed , the premises.</p> <p>3. Same.— Surrender during month.. . .</p> <p>A surrender during the course of a month is no defense to an action for rent of such month, where the rent is payable in a-dvance.</p> <p>.3. Appeal — Question not raised below.</p> <p>An objection- which might Have been obviated if properly taken . cannot be raised for the first time on appeal.</p>

<p>Appeal 'from order denying motion to punish the defendant for contempt. • '</p>

<p>Eire insurance—Unoccupied premises.</p> <p>A removal of tenants from a building, leaving, nothing therein except a blanket, renders the premises both unoccupied: and vacant within the meaning of the clause in a policy of -insurance making it void in such an event.</p>

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

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

<p>Motion by the son of the alleged lunatic for the appointment of himself as committee.</p>

Tbial of issues in an action brought to recover $50,000 damages for alleged false imprisonment. The facts, so far as they are material, are* stated in the charge.

<p>Appeal from a judgment of the Special Term.</p>

<p>Appeal by defendant from judgment directed at Equity Term.</p>

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

<p>Motion for reargument.</p>

<p>Appeal from judgment sustaining demurrer.</p>

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

Appeal by the plaintiff from a judgment in favor of the defendant, entered upon a verdict, and from an order denying a motion for a new trial based on the judge’s minutes and the exceptions taken during the trial.

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

<p>■ Appeal from order denying motion to vacate order- for substituted service. ■</p>

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

, administrator as a party. The following is the opinion at Special Term : Conlan, J. The complaint shows on its face that the action was not commenced within six years. As thé answer-pleads the Statute of Limitations, I see no reason for- bringing in the administrator. • Motion denied.

<p>Appeal from judgment by jury for plaintiff, entered on •verdict.</p>

<p>Appeal from Orders denying motions to set aside service of: '■ process in the. above-entitled actions.</p>