Volume 16 — Bedell

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 21, 1903, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>There was no legal evidence to submit to the jury to sustain the plaintiff’s contention that he had shown himself free from negligence which contributed to this accident. The complaint should have been dismissed on the motion of the defendant, and the defendant was entitled to the instruction asked — that there was no evidence to show plaintiff’s freedom from contributory negligence. (Wilcox v. R., W. & O. R. R. Co., 39 N. Y. 358 ; Cordell v. N. Y. C. & H. R. R. R. Co., 75 N. Y. 330 ; Woodard v. N. Y., L. E. & W. R. R. Co., 106 N. Y. 369 ; Young v. N. Y., L. E. & W. R. R. Co., 107 N. Y. 500 ; Tucker v. N. Y. C. & H. R. R. R. Co., 124 N.Y. 308 ; Wiwirowski v. L. S. & M. S. R. R. Co., 124 N. Y. 420 ; Getman v. D., L. & W. R. R. Co., 162 N. Y. 21 ; Wieland v. D. & H. C. Co., 167 N. Y. 19 ; Stopp v. F. R. R. Co., 80 Hun, 178 ; Hudson v. E. R. R. Co., 61 App. Div. 134 ; Westervelt v. N. Y. C. & H. R. R. R. Co., 86 App. Div. 316.)</p> <p>Plaintiff looked to left and right and listened before attempting to cross the tracks, and he was, therefore, not chargeable with contributory negligence. (Thompson v. C. Ry. Co., 110 N. Y. 630 ; Rinea v. R. I. Works, 120 N. Y. 433 ; Nevin v. City of R., 76 N. Y. 619 ; Stackus v. C. Ry. Co., 79 N. Y. 464 ; Beisegel v. C. Ry. Co., 34 N. Y. 622 ; Ernst v. H. R. Ry. Co., 35 N. Y. 9 ; Dolan v. D. & H. C. Co., 71 N. Y. 285 ; Pitts v. N. Y., L. E. & W. R. R. Co., 79 Hun, 546 ; 152 N. Y. 623 ; Greany v. L. I. R. R. Co., 101 N. Y. 419 ; Renwick v. C. Ry. Co., 36 N. Y. 132 ; Zwack v. Erie R. R. Co., 160 N. Y. 362.) Whether the plaintiff did all that a careful and prudent person should have done under the circumstances, was a question properly submitted to and disposed of by the jury. (Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y. 364 ; Greany v. L. I. Ry. Co., 101 N. Y. 419 ; Seeley v. C. Ry. Co., 8 App. Div. 402 ; Beckwith v. N. Y. C. & H. R. R. R. Co., 45 Hun, 466 ; 125 N. Y. 759 ; Miller v. N. Y. C. & H. R. R. R. Co., 82 Hun, 164 ; 146 N. Y. 367 ; Judson v. C. V. Ry. Co., 157 N. Y. 579 ; Kellogg v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 76 ; Zwack v. N. Y., L. E. & W. R. R. Co., 160 N. Y. 366 ; Wieland v. D. & H. C. Co., 30 App. Div. 85 ; Branch v. N. Y. C. R. R. Co., 39 App. Div. 435.)</p>

The facts, so far as material, are stated in the opinion. The order was invalid because it was not filed, and the defendant Brewer cannot have it allowed though he paid it. (L. 1897, ch. 418, § 15 ; Kenyon v. Walsh, 31 Misc. Rep. 634 ; Brace v. City of Gloversville, 167 N. Y. 452.) Brewer’s acceptance of the Van Brunt order on April 3, 1901, operated as a payment on the Conklin contract to the extent of $673.

It is alleged in the complaint that in September, 1894, the plaintiffs and the defendant Hull formed a copartnership to carry on business as architects in the city of Hew York, at first for a definite period, but finally until certain work was finished, and that the time for the termination thereof was uncertain owing to the large number of unfinished contracts on hand. The powers, rights and obligations of the copartners were in all respects equal.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 24, 1903, which affirmed an order of Special Term adjudging the appellant herein guilty of contempt of court. The facts, so far as material, and the question certified are stated in the opinion. An injunction order cannot be made operative against a person who is not a party to the action in which it is granted.

The nature of the action and the facts, so far as material, are stated in the opinions. The contract between the parties was void, and neither accpiired any rights thereunder.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiffs position was not a public office, and he was not a public officer, but only an employee of the defendant. The salary does not, therefore, attach to the position, and having rendered no services for the defendant during the time intervening between his discharge and reinstatement, he cannot recover.

<p>Appeal from a judgment of the Appellate Division of the • Supreme Court in the fourth judicial department, entered May 19, 1903, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The case should have been submitted to the jury, and it was error for the court to grant a nonsuit. (McDonald v. M. Ry. Co., 167 N. Y. 66.)</p> <p>The plaintiff failed to show that any negligence of the defendant caused the injuries complained of, and the trial court properly granted a nonsuit. (F. L. & T. Co. v. Siefke, 144 N. Y. 354 ; Whitlach v. F. & C. Co., 149 N. Y. 45 ; S. & R. on Neg. [5th ed.] §§ 25, 26 ; Cooley on Torts, 69 ; Laidlaw v. Sage, 158 N. Y. 73 ; Huck v. Roch. R. Co., 43 App. Div. 615 ; 169 N. Y. 590 ; City of Albany v. W. T. & R. Co., 76 Hun, 136 ; Hudson v. R., W. & O. R. R. Co., 145 N. Y. 408 ; Pollock v. Pollock, 71 N. Y. 137 ; Dobie v. Armstrong, 160 N. Y. 584 ; Bond v. Smith, 113 N. Y. 378.)</p>

The action was brought to procure an annulment of the marriage between the plaintiff and defendant upon the ground of fraud, in that the defendant, at the time of the marriage, was suffering from a chronic and contagious venereal disease which he concealed from the plaintiff. The parties were married in the city of New York March 29, 1900.

The nature of the action and the facts, so far as material, are stated in the dissenting opinion. The terms of the benefit certificate issued by the defendant to Emanuel Meyer, the'laws and rules of the defendant, together with the application for membership by Emanuel Meyer, ‘ constitute the contract which existed between the member and the society, which instruments construed together measure the rights of the litigants, and are binding in all respects upon the plaintiff.

The facts, so far as material, are stated in the opinion. The defendant’s guilt was proven beyond a reasonable doubt. The judgment should, therefore, be affirmed, regardless of alleged technical errors not affecting substantial rights of the defendant. (Code Crim. Pro. §§ 542, 684; People v. Buddenseick, 103 N. Y. 500; People v. Dimmick, 107 N. Y. 13; People v. Wyman, 128 N. Y. 585; People v. Youngs, 151 N. Y. 220.)

The plaintiff sued to compel the defendant, specifically, to perform his agreement to convey a clear title to certain real estate, as demanded by the terms of a contract between them ; or for the recovery back of the moneys paid by plaintiff upon the contract. The objection had been made to the title of the defendant that it was defective and unmarketable.

Appeal in each of the above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered IVIay 11, 1903, which affirmed a judgment of Special Term enjoining the defendant from operating its railway upon any part of Washington avenue in front of the premises of each of such plaintiffs.

<p>Negligence — Intervening and Proximate Cause—Fall of Chimney, to Which Telephone Wire Was Attached, Caused by the Wire Being Struck by the Boom of a Derrick. Where a telephone '•wire, which had been attached to a chimney 39 feet above the ground for a period of two years, and which extended across the street, and beyond, to the top of a building 100 feet from the ground, was struck by the boom ■of a high derrick, used in hoisting materials upon a building being erected -on the opposite side of the street, with sufficient force to pull the chimney -over, and a person passing along the street was injured by the bricks falling from the chimney, the negligence of the persons operating the derrick must he deemed an intervening and the responsible cause of the accident, although there was evidence that the chimney had been weakened by age and decay; since .the wire was far enough above the street to be out of the way of interference from usual street uses and the chimney was strong enough to sustain the wire until it was struck by the boom of the derrick. Even assuming that the telephone company was negligent in continuing to maintain its wire upon a chimney which inspection would have shown to have become unsound, its omission of the duty oí inspection was not the proximate cause of the fall of the chimney; remotely, it may have been a cause, but proximately it was simply the intervention of the derrick boom, carelessly allowed to swing out in the street, which enabled the accident to occur, and the person injured cannot, therefore, maintain an action against the telephone company to recover for such injuries.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The referee erred in refusing permission to the defendant to read on his own behalf portions of his testimony given on the former reference explanatory of the part which the plaintiff had read. (1 Greenl. on Ev. [Redf. ed.] § 201 ; Grattan v. M. L. I. Co., 92 N. Y. 274 ; Downs v. N. Y. C. R. R. Co., 47 N. Y. 83 ; Rouse v. Whited, 25 N. Y. 170 ; Barnes v. Allen, 1 Abb. Ct. App.

<p>New York (City of) — Deputy Tax Commissioner — Duration and Tenure of Office Under Greater New York Charter as Amended by Chapter 466, Laws of 1901. By the elimination from section 887 of the Greater New York charter, by the amended charter (L. 1901, ch. 466), of the provision that deputy tax commissioners shall hold their offices during the pleasure of the board of taxes and assessments and be subject to removal by said board as deputies in the other city departments, spch officers became subject to removal as provided by section 1543, and, as the position of deputy tax commissioner is an office, and so denominated in the charter, the duration of which is not declared by law, the office is held during the pleasure of the authority making the appointment. (Const, art. 10, § 3.) '</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Erroneous evidence was admitted upon the trial and proper evidence was excluded.

The nature of the action and the facts, so far as material, are stated in the opinion. No legal or equitable liability was established against the defendant. (11 Am. & Eng. Ency. of Law [2d ed.], 184 ; Texas v. Hardenberg, 19 Wall. [U. S.] 89 ; Craig v. Leslie, 3 Wheat. [U. S.] 578 ; Murray v. De Rottenham, 6 Johns.

Appeals from judgments of the Appellate Division of the Supreme Court in the third judicial department, entered June 8, 1903, affirming judgments in favor of defendants entered upon dismissals of the complaints by the court at a Trial Term. The nature of the actions and the facts, so far as material, are stated in the opinion. The canal in question is a public highway.

■ Appeal from a judgment entered April 22, 1903, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint. The nature of the action and the facts, so far as material, ■ are stated in the opinion. Ho cause of action is stated, because the express terms of the contract provided for the repayment of the money only on the return of the certificate.

The nature of the action and the facts, so far as material, are stated in the opinion. It was error on the part of the trial court to admit in evidence, over the objection and exception of the plaintiff, the written assignment made by Stoner to the defendant. (Dean v. M. E. R. Co., 119 N. Y. 540 ; Hare v. Van Deusen, 32 Barb. 92; N. Y. Shot Co. v. Carey, 20 How. Pr. 444 ; Bennett v. Lawrence, 71 App. Div. 413 ; Campagne v. Powell, 48 App.

The nature of the controversy and the facts, so far as material, are stated in the opinion. Plaintiff’s right to dower has not been barred by the Statute of Limitations. (Hamilton v. R. Ins. Co., 159 N. Y. 327 ; Hayden v. Pierce, 144 N. Y. 512 ; Kyle v. Kyle, 67 N. Y. 407 ; Titus v. Poole, 145 N. Y. 414 ; Fowler v. Wood, 78 Hun, 304 ; 150 N. Y. 584 ; Simonson v. Nafis, 36 App. Div. 473 ; Hulbert v. Clarke, 128 N. Y. 295 ; Watkins v. Reed, 30 Fed.

The nature of the action and the facts, so far as material, are stated in the opinion. The notice of lien was improperly filed, and there can he no recovery against the surety. (Bell v. Mayor, etc., 105 N. Y. 139 ; Y. P. Co. v. Bd. of Education, 15 Misc. Rep. 58 ; Foster v. Schneider, 50 Hun, 151 ; Davidsburgh v. K., etc., Co., 90 N. Y. 526 ; Morton v. Tucker, 145 N. Y. 244 ; Ringle v. Mathieson, 10 App. Div. 274 ; 17 App.

^ The facts, so far as material, are stated in the opinion. The evidence does not indicate that the crime of murder in the first degree was made out. The verdict rendered by the jury must, therefore, be set aside. (People v. Conroy, 97 N. Y. 62; People v. Stokes, 53 N. Y. 174; People v. Barberi, 149 N. Y. 236; Layton v. People, 10 Abb. [N. C.] 261; 24 Hun, 659; People v. Beckwith, 103 N. Y. 360; Sullivan v. People, 1 Park. Cr.

<p>Appeal from a judgment of the Supreme Court, rendered October 30, 1903, at a Trial Term for the county of Westchester, upon a verdict convicting the defendant of the crime of murder in the first degree.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The defendant was entitled to be present at the formation of the grand jury, in order that he might exercise his right to challenge any individual grand juror. (1 Bishop on Crim. Pro. [3d ed.] §§ 876, 877, 878; Code Crim. Pro. § 237; People v. Nugent, 57 App. Div. 542; Clare v. State, 30 Md. 163; Terr. v. Ingersoll, 3 Mont. 454; Terr. v. Harding, 6 Mont. 323; Russell v. State, 33 Ala. 366; Pointer v. State, 89 Ind. 255; People v. Winterman, 1 Dak. 63; State v. Gulick, 7 Iowa, 287; Hudspeth v. State, 50 Ark. 534; Fisher v. State, 63 Ga. 309.) By the denial of the motion to dismiss the indictment, defendant has been deprived of his right to interpose any challenge to the individual members of the grand jury which indicted him. This was violative of the sense and spirit of the Federal Constitution. (Hovey v. Elliot, 167 U. S. 409)</p> <p>The motion to dismiss the indictment made by defendant’s counsel at the time of arraignment, on the ground that the defendant had no opportunity to challenge individual grand jurors by reason of his being imprisoned at the time the grand jury which indicted him were impaneled and sworn was properly denied. (People v. Glen, 173 N. Y. 395; Const, of N. Y. art. 1, § 16; People v, Petrea, 92 N. Y. 128; Walter v. People, 32 N. Y. 147; State v. Hinckley, 4 Minn. 345; State v. Hoyt, 13 Minn. 132; Gibbs v. State, 46 Am. Rep. 782; State v. Easter, 27 Am. Rep. 478; United States v. White, 5 Cranch, 457; State v. Gibbs, 39 Iowa, 318; Tucker’s Case, 8 Mass. 285; State v. Klingman, 14 Iowa, 404; State v. Ostrander, 18 Iowa, 435, State v. Reid, 20 Iowa, 413.) The challenge to the panel of trial jurors was properly denied. (People v. Petrea, 92 N. Y. 128; People v. Youngs, 151 N. Y. 210; People v. Dunn, 157 N. Y. 528; People v. Shea, 147 N. Y. 78; People v. Sickles, 156 N. Y. 541.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The settlement of the disputed claim between the parties effected an accord and satisfaction. (Whittaker v. Ellenberg, 70 App. Div. 489 ; Looby v. Vil. of West Troy, 24 Hun, 78 ; Palmerton v. Huxford, 4. Den. 166 ; People v. Bd. of Suprs., 33 Hun, 305 ; People v. Bd. of Managers, 96 N. Y. 640 ; Fuller v. Kemp, 138 N. Y. 231 ; Nassoiy v. Tomlinson, 148 N. Y. 326 ; Wissner v. Schopp, 34 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The findings of fact do not lead to the conclusion of law upon which the judgment at Special Term was based. (Bullard v. S. V. Mfg. Co., 77 N. Y. 525.) There is no finding in this case that the user made by the defendant of his pond was unreasonable, and the evidence on this point is not undisputed.

The nature of the action and the facts, so far as material, are stated in the opinion. The conversation between Henry Hinckley and the plaintiff, objected to by defendant and admitted and retained in the case by the court, was clearly incompetent and improper and it was error to receive it.

James Fraser died on the 11th day of June, 1876, seized of the real property described in the record, and left a will dated the 3rd day of December, 1862, which was admitted to probate on the 11 tli day of January, 1877, the material parts of which, disposing of his residuary estate, are as follows: “ I give, devise and bequeath to my beloved wife, Jessie, all my estate, real and personal, of which I may die seized or possessed, or to which I may then be entitled, for the…

The nature of the action and the facts, so far as material, are stated in the opinion. The discretion of a municipal corj>oration, within the sphere of its powers, is not subject to judicial, control, except in cases where fraud is shown, or where the power or discretion is being grossly abused. (Morgan v. City of Binghamton, 102 N. Y. 500 ; City of Crawfordsville v. Braden, 130 Ind. 149 ; High on Inj. [3d ed.] §§ 1240, 1210 ; 1 Dillon on Mun.

The nature of the action and the facts, so far as material, are stated in the opinion. A full and complete and binding contract was made between the parties for the cattle space on defendant’s steamers as alleged in the complaint. (Gates v. Dudgeon, 173 N. Y. 426 ; Nichols v. S. S. Co., 137 N. Y. 471 ; Stillwell v. O. S. Co., 5 App. Div. 212 ; Sanders v. P. B. F. Co., 144 N. Y. 209 ; Canda v. Wick, 100 N. Y. 127 ; Diskin v. Herter, 75 App.

On the twenty-sixth of December, 1900, the plaintiff, who was a practicing physician, boarded one of the defendant’s cars at the corner of Nostrand avenue and Fulton street at about 10 : 20 in the morning. As to what thereafter occurred, the plaintiff testified: “ I know who the conductor was on that car, Conductor Wright. He came to collect my fare just a few minutes after I got on the car.

<p>1. Evidence — When Declarations of Decedent as to Character of Transfers of Property Made in Her Lifetime Are Inadmissible. Where one of the issues in a partition action is as to whether transfers of certain property made to two of the defendants by their deceased mother in her lifetime were gifts or advancements, her declarations that they were gifts are inadmissible.</p> <p>2. When Declarations as to Donor of a Certificate of Deposit • Are Admissible as Part of tub Res 0-est.s. Where one of the issues is as to whether the father of one of the defendants, who gave her a certificate of deposit before the death of her mother, acted in his own behalf or that of his wife, whatever occurred at the interview when he handed her the certificate is material as, part of the res gestee; the exclusion of evidence, therefore, to the effect that he said that it was a present from him and had nothing to do with her mother, constitutes reversible error.</p>

<p>1. Sales — Oral Modification of Written Agreement. A written contract of sale stipulating that no modification thereof shall be binding unless in writing duly accepted by the parties may, by their assent, he orally modified as to time of performance; and where it is found, as a matter of fact, in an action brought for the purchase price that the time of delivery was changed in the interest and for the accommodation of both parties, and that the defendant not only permitted the plaintiff to manufacture the articles after the time specified in the contract, but was willing that it should do so, the defendant is, under the circumstances, estopped from setting up the defense of non-performance as to time.</p> <p>3. Trial — Appeal—Where Objection to Erroneous Admission oe Evidence Obviated by Amendment oe Pleadings. Where plaintiff is permitted by the referee, during the trial of an action and upon terms. to serve an amended complaint, whereupon the defendant served an amended answer in which a counterclaim was set up in addition to the matter originally pleaded, exceptions taken by the defendant to certain testimony admitted before the pleadings were amended are not available on appeal where such amendments obviated all objection to the testimony, since the referee had power to permit the amendments and the pleadings having been made sufficient to cover the testimony the ob j ection disappears.</p> <p>3. Rights of Vendor When Purchaser Refuses to Accept or Pat for Goods — Interest. Where the’ purchaser of machinery to be delivered and installed at a specified time refused to accept or pay for the same, the vendor may sell it at public auction, upon due notice, and maintain an action against the purchaser for the purchase price thereof after deducting therefrom the amount received at the auction sale and the cost of installing the machinery, together with interest on such balance from the time of the purchaser’s default.</p>

<p>Negligence—Risk op Employment. The owners of a store who have constructed therein marble stairs for the use of their employees and patrons, assuming that they were slippery by reason of the smoothness or polish, are not liable to a clerk for an injury resulting from slipping thereon, where she was perfectly familiar with their condition, having used them several times each day, and, therefore, must be deemed to have assumed the risk incidental to their use.</p>

<p>1. Mortgage — Acceptance of Interest in Advance Prima Facie, Mot Conclusive Evidence of Extension of Time of Payment. A valid extension of the time of payment of a bond and mortgage, such as will discharge one standing in the relation of surety for the payment of the mortgage debt, is not established as matter of law by the mere receipt from the grantee of the premises of interest three days in advance, where there is no other proof of an agreement, express or implied, for such extension, and two and a half days of the three were legal holidays.</p> <p>3. Insufficiency of Evidence to Establish an Agreement for a Change in Rate of Interest Which Will Discharge Surety. While a valid agreement between the mortgagee and the grantee of the mortgaged premises to change the rate of interest, made without the knowledge or consent of the surety, would operate to discharge him, such an agreement is not established as a matter of law by proof that the mort ga gee directed an increase in the rate, which the grantee thereafter volun tarily paid and the mortgagee received for a short period, when the former rate was restored, in the absence of any other evidence establishing or tending to establish such an agreement.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. TJpon the termination of the lease Mr. Healey had a right to assume his authority over the premises as an owner and tenant in common, and as such to occupy his own property and to permit his firm to occupy with him and for him under his right.

<p>1. Crimes—Evidence of One Crime Incompetent to Establish Guilt of Another.</p> <p>That portion of a conversation, in which a defendant who has " confessed therein his guilt of the crimes of burglary and larceny, : which admits his guilt of another burglary not charged in the indictment, is incompetent evidence to establish the former crimes where there is no legal connection between them and the latter burglary, and there is’ nothing in the conversation which renders it impossible for the prosecution to prove his confession of the crimes charged without also proving what he said about the crime not charged; and its admission under objection and exception constitutes reversible error.</p> <p>2* Same—Exceptions to General Rule.</p> <p>The whole of a conversation in which a defendant confesses his guilt cf a crime charged, although that confession may constitute only a part of such conversation, is competent in three classes of cases. 1. Those in which the confession of guilt is coupled with exculpatory or extenuating statements. 2. Those in which a confession, relevant and competent as to the crime charged, is not rendered inadmissible because it also necessarily relates to another crime. 3. Those in which each part of a conversation is so essentially interwoven with every other part that a confession of the crime charged cannot be proven without admitting evidence of the whole transaction; but in such a case the extraneous matter, if it tends to incriminate the defendant, should not be taken as substantive fact, and should only go to the jury under cautionary instructions from the court.</p>

<p>Appeal—Mistrial. Proceedings to review upon appeal vary with the nature of the trial, and where the return to the Court of Appeals shows such irregularity of practice as to amount to a mistrial, the only way to avoid injustice is to reverse the orders of both courts below and direct a trial which the law can recognize. The practice pursued upon the trial of the issues of fact raised by an alternative writ of mandamus and the return thereto considered, and held to amount to a mistrial.</p>

This' proceeding involves the construction of chapter G10 of the Laws of 1903, which amends the Highway Law by inserting therein a new section, known as section 11a, which reads as follows: “ § 11a. Damages for change of grade.

^ The facts, so far as material, are stated in the opinion. The judgment is not supported by the evidence. (People v. O’Neill, 5 N. Y. Cr. Rep. 302; People v. Kelly, 37 Hun, 160; Best on Ev. § 554? 3 Rice on Ev. §§ 313, 316; State v. Guild, 18 Am.

The facts, so far material, are stated in the opinion. The direction for accumulations for the benefit of unborn descendants was an essential part of the general scheme of the testator, and it cannot he cut out of the will, and the legal trusts preserved, without overturning the genéral purpose and intent of the testator and bringing about results never comtemplated by him.

the court at a Trial Term, a jury having been waived. The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in the amount allowed plaintiff for rents and profits during the occupancy of the defendants. (Code Civ.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 9, 1903, which affirmed a final judgment dismissing the complaint for failure to pay costs and amend after an interlocutory judgment sustaining a demurrer to the complaint.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The plaintiff was injured through the fall of a portion of a ceiling of which the defendant had control; the fall being due to the fact that the defendant negligently permitted the ceiling to be and become defective, out of repair and dangerous, he is, therefore, liable to plaintiff for the injuries sustained. (Dollard v. Roberts, 130 N. Y. 269 ; Henkel v. Murr, 31 Hun, 28 ; Donner v. Ogilvie, 49 Hun, 229 ; Stabenhorst v. A. M. Co., 15 Abb. Pr. [N. S.] 355 ; Peil v. Reinhart, 127 N. Y. 381 ; Nadel v. Fichten, 34 App. Div. 188 ; Citron v. Bayley, 36 App. Div. 130 ; Levy v. Korn, 30 Misc. Rep. 199 ; Levine v. Baldwin, 87 App. Div. 150 ; Harris v. Boardman, 68 App. Div. 436.) Connection is shown between the defective condition of the roof, the fall of the ceiling and the plaintiff’s injuries. (Oldfield v. N. Y. & H. R. R. Co., 14 N. Y. 310 ; Edgerton v. N. Y. & H. R. R. Co., 39 N. Y. 227 ; Leeds v. N. Y. T. Co., 64 App. Div. 484 ; Fahr v. M. R. Co., 9 Misc. Rep. 57 ; Allinger v. McKeown, 30 Misc. Rep. 275.) A demurrer to a complaint on the ground that it does not state facts sufficient to constitute a cause of action will not be sustained where the facts directly alleged and those which by fair and reasonable intendment may be implied from the direct allegations show a cause of action. (Wenk v. City of New York, 171 N. Y. 607 ; Marie v. Garrison, 83 N. Y. 14.)</p> <p>The defendant is not liable in tort for his failure to repair the ceiling in pdaintiff’s apartment, and hence is not liable for damages for personal injuries arising from the defective condition of the ceiling. (Schick v. Fleischhauer, 26 App. Div. 210 ; Frank v. Mandel, 76 App. Div. 113 ; Rich v. N. Y. C. & H. R. R. R. Co., 87 N. Y. 382 ; O'Dwyer v. O'Brien, 13 App. Div. 570 ; Peil v. Reinhart, 127 N. Y. 381 ; Dollard v. Roberts, 130 N. Y. 269.) There is no connection shown between the defective condition of the roof and the accident to the plaintiff. (Clark v. Dillon, 97 N. Y. 370 ; Hammel v. Washburn, 49 App. Div. 119 ; Browne v. E. S. Co., 44 App. Div. 598 ; Greeff v. E. L. Ins. Co., 160 N. Y. 19 ; Douglas v. P. Ins. Co., 63 Hun, 393 ; Church v. Butterfield, 19 Misc. Rep. 265.)</p>

<p>Chimes—Appeal — Order of Reversal upon Ground That Justice Required a New Trial Not Review able. An order of reversal in a criminal case, that does not upon its face exclude the possibility that it was based upon an examination of the facts or made as a matter of discretion, presents no question of law reviewable by the Court of Appeals.</p>

<p>Promissory Note — When Consideration for Extension of Time of Payment Must Be Pleaded. A valid consideration is an essential element of an agreement, after maturity, to extend the time of payment of a promissory note such as will discharge a surety thereon; and in an action upon the note, if such an agreement is relied upon as a defense, the consideration therefor must he pleaded and proved.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 28, 1904, which affirmed an interlocutory judgment of Special Term sustaining a demurrer to the complaint. The nature of the action, the facts, so far as material, and he questions certified are stated in the opinion. Ella M. Kean, as the only tchild surviving at the death of her father, is entitled to the whole proceeds of the policies.

<p>1. Witness — When He May Be Contradicted or Discredited' by Previous Written or Oral Statements. Letters, affidavits, written statements, verified pleadings, depositions and previous testimony of a witness are admissible to impeach him, if they are material to the issue upon which he is testifying and if they tend to contradict or discredit him, and when such contradictory matter, is in writing, and can be produced, the whole of the writing should be offered in evidence before it is allowed to be read.</p> <p>3. Same — Statement oe Rule for Admission of Such Writings, or Parts Thereof, Wren They Contain Immaterial and InComfetent Matter. Where, however, such writing contains much irrelevant or incompetent matter in addition to the parts that are material, competent and contradictory of the.witness, only the material and competent parts should be received and read in evidence; in no event, however, should the writing, or any part thereof, be read until it has been marked in evidence; and if the writing contains irrelevant or incompetent matter that cannot be safely submitted to a jury, it should be marked for identification and the competent parts thereof read into the minutes so as to form part of the record.</p> <p>8. Same — Erroneous Exclusion of Contradotory Statements Made by Witnesses for Plaintiff in Action to Recover Damages for Alleged Injuries. Where witnesses for the plaintiff, in an action brought to recover for injuries alleged to have been caused by the negligence of the defendants, had, at the instance of the defendants, prior to the trial and in anticipation thereof, signed written statements containing matter relating to plaintiff’s alleged injuries and clearly contradictory of the testimony given at the trial by such witnesses, it may fairly be presumed that the statements were made for use at the trial and that they were germane to the issue; and where the witnesses had, upon cross-examination by defendants, identified and admitted their signatures to the statements, it is reversible error to exclude the statements from evidence when offered by defendants as part of their case for the purpose of impeaching such witnesses, where the objection thereto was merely general, as immaterial, irrelevant and incompetent, and not upon the specific ground that parts thereof were incompetent for the purpose for which they were offered, especially where the trial court, after excluding the statements, criticised and discussed the execution and contents thereof as if they had been admitted in evidence and were before the jury.</p>

The nature of the controversy and the facts, so far as material, are stated in the opinion. The state of ¡North Carolina had the authority to prescribe conditions upon which foreign insurance companies should be permitted to transact business in that state, and when those conditions were complied with, neither the state itself nor the insurance company could take away from the policyholders the rights thereby obtained.

The county judge sustained the demurrers of defendants to the indictment, and being of the opinion that the objection upon which the demurrers were allowed might be avoided in a new indictment, ordered that the case be resubmitted to another grand jury. The Appellate Division reversed the order of the county judge and overruled the demurrers. From the judgment of the Appellate Division an appeal was taken to this court.

The nature of the action and the facts, so far as material, are stated in the opinion. An untrue misrepresentation if material avoids a certificate of insurance whether made intentionally or through mistake or in good faith and the Appellate Division erred in holding that bad faith on the part of the applicant Alden was necessary in the case at bar to avoid the certificate. (Evans v. G. Ins. Co., 40 Misc. Rep. 316 ; Higbee v. G. M. L. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. The construction attempted to be placed upon the lease by the defendant is both unreasonable and arbitrary. (Russell v. Allerton, 108 N. Y. 292 ; Halpin v. Ins. Co. of N. A., 120 N. Y. 75 ; Ludwig v. J. C. Ins. Co., 48 N. Y. 383 ; Bidwell v. N. A. Ins.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 15, 1904, which affirmed an order of the New York County Surrogate’s Court permitting the compromise of a claim against the estate of George F. Gilman, deceased.</p>

Appeal, by permission, from a judgment entered February 3, 1904, upon an order of the Appellate Division of the Supreme Court in the third judicial department, which reversed an interlocutory judgment of Special Term sustaining a demurrer to a counterclaim and overruled said demurrer.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 28,1904, which affirmed an interlocutory judgment of Special Term sustaining a demurrer to the complaint.