Volume 158 — New York Reports

This action was brought to recover the proceeds of a certain policy of insurance for $10,000, issued on the life of Alois Diepenbrock, appellant’s testator, by the Equitable Life Assurance Society of the United States. The amount due thereon was claimed, on the one hand, by the plaintiff as assignee, and, on the other hand, by the defendant Louise Diepenbrock, as executrix of the estate of Alois Diepenbrock, deceased.

The judgment of affirmance was entered March 12, 1896, and contained no provision showing that the Appellate Division was unanimous in awarding it. Subsequently to its entry the plaintiff moved for a resettlement of ,the order of affirmance so that it should appear in the order that the decision of that court was unanimous, but that motion was denied. The nature of the action and the facts, so far as material, are stated in the opinion.

, as executor of Mary Dugdale, deceased, and to order a further accounting. The facts, so far as material, are stated in the opinion. The appeal-should be dismissed. The appeal is not from a final order. A similar motion could be entertained for a new hearing as often as the surrogate might in his discretion hear it.

The plaintiff, who with her husband had occupied the third floor of defendant’s building for a period of ten years, was on the 24th day of February, 1893, engaged in sweeping the stairs between the second and first floors when she caught her foot on a nail and fell backwards down the stairs. The result was an injury, and this action was brought to recover damages sustained.

the Supreme Court in the third judicial department, entered May 18,1898, reversing on certiorari a determination of the comptroller of the state assessing a corporation tax upon the relator for the three years ending November 1,1898.

<p>Civil Service — New York City — Removal without Notice. The relator in an application for a writ of mandamus to reinstate him in the position of superintendent of the almshouse in the city of New York held the position on January 1, 1898, when the Greater New York charter went into effect, and was transferred to the employ of the new city. The position was classified as competitive by the city civil service regulations then in force, but under the regulations of the new city civil service commissioners which went into effect March 5, 1898, it was classified as noncompetitive. On March 31, 1898, chapter 186 of the Laws of 1898 went into effect, which amended the general Civil Service Act of 1883 by changing the manner in which city regulations should be adopted and put in force, and by giving persons holding competitive positions the right to notice and to a hearing before removal. On July 1, 1898, the relator was removed, without notice or an opportunity to be heard. Held, that the removal was not illegal and that the relator was not entitled to the writ.</p>

The facts, so far as material, are stated in the opinion. The moving papers do not sufficiently charge Mr. Eandel with either “deceit” or “ malpractice,” and it was erroneous to put him to a trial thereunder. (Code Civ. Pro. § 67.) The fact that Eandel did not testify raises a legal presumption of the truth of the testimony, which, if untrue, he might have contradicted. (Wylde v. N. R. R. Co., 53 N. Y. 156; Brooks v. Steen, 6 Hun, 517; People v. Dorthy, 20 App.

13, 1896, affirming a judgment in favor of plaintiff 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. The poles of the defendant electric company, since they are necessary to the lighting of the public highway, are lawfully placed in the street in front of plaintiff’s land, and cannot be ejected therefrom.

This action was brought to recover damages for personal injuries alleged to have been sustained through the negligence of defendant. The facts, so far as material, are stated in the opinion. Defendant was not liable for the act of the postal clerk in this case, and the court should, have so held when requested. (Carpenter v. B. & A. R. R. Co., 97 N. Y. 494; Muster v. C., M. & St. P. R. R. Co., 61 Wis. 325 ; Putnam v. B. & S. A. R. R. Co., 55 N. Y. 108; Palmer v. Penna.

The nature of the action and the facts, so far as material, are stated in the opinion. The bridge and its abutments are, and always have been, an authorized and legal structure.

The nature of the action and the facts, so far as material, are stated in the opinion. Chapter 385 of the Laws of 1889 is unconstitutional and void because it grants an exclusive privilege to a private association in contravention of the provisions of the Constitution (§ 18, art. 3).

07. The nature of the action and the facts, so far as material, are stated in the opinion. A tenant in common has a legal right at all times to enter upon and occupy and possess each and every part of the common property, and the exercise by him of that legal right imposes upon him no obligation to pay for use and occupation, even though he occupy the whole, much less can it raise against him by the operation of a naked presumption of law a liability to pay rent.

The facts, so far as material, are stated in the opinion. The notice served under the statute of 1853, and the omission of defendant to obey it, gave a right to the writ applied for to relator, which right is not affected by chapter 754 of the Laws of 1897. (People ex rel. v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 570; L. 1897, ch. 754; Matter of North Third Avenue, 32 App. Div. 394; Lazarus v. M. E. R. Co., 145 N. Y. 581; Devlin v. Mayor, etc., 4 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff is entitled to have the language of this policy construed most favorably toward her. (Griffey v. N. Y. C. Ins. Co., 100 N. Y. 421; Dwight v. G. L. Ins. Co., 103 N. Y. 348; Winne v. N. F. Ins. Co., 91 N. Y. 185; Herrman v. M. Ins.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 24, 1896, affirming a judgment in favor of plaintiff entered upon a decision 'of the court on trial at the Dutchess County Special Term.</p> <p>The nature of the action and the facts, so far- as material, are stated in the opinion.</p> <p>The attempt to prove the patent -by the so-called record in the office of the secretary of state and by certified copies thereof, does not avail as legal proof of anything. (Code Civ. Pro. §§ 933, 957; 1 R. L. ch. 97, § 7; Hager v. Hager, 38 Barb. 92.) The attempt to prove the patent by parol was ineffectual. There was no lawful authority for making or filing the maps of 1868. (N. Y. C. & H. R. R. R. Co. v. Aldridge, 135 N. Y. 89.) The commissioners of the land office had no authority to grant the lands in question to the plaintiff. (L. 1850, ch. 140, § 25 ; L. 1846, ch. 216.)</p> <p>The plaintiff proved a clear and perfect title in itself to the premises in controversy and the defendant’s possession thereof is unlawful. (Saunders v. N. Y. C. & H. R. R. R. Co., 144 N. Y. 75 ; N. Y. C. & H. R. R. R. Co. v. Aldridge, 135 N. Y. 83; Kerr v. W. S. R. R. Co., 127 N. Y. 269 ; Mayor, etc., v. Hart, 95 N. Y. 443; Langdon v. Mayor, etc., 93 N. Y. 129; L. 1869, ch. 917, § 8.) The defendant relies entirely upon the alleged invalidity of the plaintiff’s patent from the state, but the validity of that patent cannot be impeached or questioned in this action. It is not open to collateral attack. (People v. Mauran, 5 Den. 389; B. Mfg. Co. v. B. S. I. Works, 129 N. Y. 155; N. Y. C. & H. R. R. R. Co. v. Aldridge, 135 N. Y. 83; DeLancey v. Piepgras, 138 N. Y. 26; Saunders v. N. Y. C. & H. R. R. R. Co., 144 N. Y. 75.) The plaintiff’s patent was sufficiently proved. (Wines v. Mayor, 70 N. Y. 613; Rockwell v. Merwin, 45 N. Y. 166; Catlin v. Grissler, 57 N. Y. 363; Robert v. Good, 36 N. Y. 408; Dunford v. Weaver, 84 N. Y. 445; Jarvis v. Sewall, 40 Barb. 449 ; Dunham v. Townshend, 118 N. Y. 281.)</p>

<p>Motion for reargmnent of case reported at page 266 of this volume.</p>

The nature of the proceeding and the facts, so far as; material, are seated in the opinion. Persons committed by the final judgment of a court or magistrate of competent jurisdiction, in a criminal proceeding, cannot be discharged by the-Supreme Court by virtue of its general equitable powers, (Matter of Forbes, 4 Park. Cr. Rep. 611; L. 1895, ch. 355,, § 3 ; Penal Code, § 291; Code Crim.

<p>1. New York-. City — Consent Required to Confer Franchise upon Gaslighting Corporation can be Given only by Municipal Assembly. Under the provisions of the Greater New York charter (L. 1897, ch. 378), the consent that is required by section 61 of the Transportation Corporations Law (L. 1890, ch. 566) tó confer a franchise upon a gaslighting corporation.can he given only by the municipal assembly, through appropriate ordinances.</p> <p>3. Subsequent Permits from Administrative City Officers. Wheu the consent of the municipal assembly has been granted to a gaslighting corporation duly created, by which a corporate franchise, which is property, has been acquired, the administrative officers of the city, namely the commissioner of public buildings, lighting anil supplies and the commissioner of highways, must be applied to for a permit that will allow the corporation to exercise such rights in order that the public convenience may be subserved.</p> <p>3. Term “Municipal Authorities” Means Municipal Assembly. In the city of New York the “municipal authorities.” within the meaning of that term as used in section 61 of the Transportation Corporations Law, whose consent is required to lay conductors for conducting gas through the streets of the city, are the municipal assembly.</p>

<p>1. Criminal law—District attorney.</p> <p>If the district attorney lays aside the impartiality that should characterize his official action to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceases to properly represent the public interest. He should put himself under proper restraint, and should not in his remarks, in the hearing of the jury, go beyond the evidence or the bounds of a reasonable moderation.</p> <p>3. Same—Reversal.</p> <p>Where the admonition of the court does not prove sufficient to prevent improper and dangerous appeals to the prejudice of jurors, it becomes necessary to rigidly enforce the general rule that requires a reversal whenever the error is raised by a proper exception.</p> <p>3. Same.</p> <p>In a case that is free from doubt upon the merits, the appellate courts disregard errors of the trial court, even in a criminal case, when it is reasonably certain that they could not have affected the result.</p> <p>4. Same.</p> <p>But instructions to the jury do not always neutralize, either as a matter of law or fact, the effect of improper remarks in their presence. 6. Same—Defendant’s counsel.</p> <p>After persisting in his efforts to protect his client until the court holds that he was out of order, the counsel for defendant is not obliged to run the risk of punishment for contempt by continuing to object.</p> <p>6. Same—Error, cured.</p> <p>When improper evidence has been received or improper statements made in the presence of the jury, if the court seeks to correct them, the correction should be as broad as the error, and cover substantially the same ground, as was the case in Cole v. Pall Brook Coal Co. (159 K. Y. 59).</p> <p>*7. Same.</p> <p>A correction does not cure the error, where it does not go far enough and is not sufficiently clear and specific.</p>

entered April 22, 1896, which was directed by the Appellate Division of the Supreme Court in the fourth judicial department to he entered upon a verdict previously directed by the trial court… Held: and one Kingsley was elected in his place. On July. 7, 1892. the plaintiff made a further call upon its stock of twelve and on e-half per cent. Van Every did not pay, and on ¡November 4, 1893, a judgment by default was obtained against him by the plaintiff for the amount thereof.

The nature of the action and the facts, so far as material, are stated in the opinion. The negligence of the defendant was properly submitted to, and decided by, the jury.

<p>1. Motion for Reargument—Jurisdiction of Court of Appeals. It is competent for a judge of the Court of Appeals, after its remittitur has been filed and order entered thereon in the court below, to make an order to show cause why the return of the remittitur should not be requested and a reargument granted, with a stay of proceedings in the meantime. (Per Bartlett, J., at Chambers.)</p> <p>2. Stay of Proceedings. The restriction imposed by section 775 of the Code of Civil Procedure upon .the power of a judge out of court to stay proceedings for more than twenty days, except upon notice, does not apply to a stay for the purpose of a motion for reargument of an appeal. (Per Bartlett, J., at Chambers.)</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 9, 1898, affirming an order denying a motion for a writ of mandamus commanding the respondent to reinstate the relator in the place of oil collector in the fire department of the city of New York.</p>

Appeal, by permission, from an order of the late General Term of the Supreme Court in the first judicial department, entered December 24, 1895, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Circuit, a jury having been waived, and granting a new trial.

Appeals from an order of the Appellate Division of the Supreme Court in the third judicial department in each of the above-entitled proceedings, entered December 3, 1898, reversing orders of Special Term granting peremptory writs of mandamus directing the defendants to lay out a street across their tracks in the village of Waverly.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 24, 1896, affirming a judgment in favor of defendant entered upon a decision of the court dismissing the complaint on trial without a jury.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 8, 1896, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial without a jury, and granting a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 30,1896, affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 21, 1898, reversing a judgment in favor of plaintiff entered upon the report of a referee, and granting a new trial.</p>