Volume 16 — E.H. Smith

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant’s motion to dismiss the complaint at the beginning of the trial should have been granted, as the complaint alleged no cause of action.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The surrogate erred in refusing to credit executrix with her legal commissions, as fixed by section 2730 of the Code of Civil Procedure. (Cook v. Lowry, 95 N. Y. 103 : Story’s Eq. Juris. § 1272; Roosevelt v. Raphet, 6 Abb. [N. C.] 447.)

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 conclusion of the referee, that the transfer of the bonds by Stranahan to the plaintiff as collateral security for his own debt, was an unauthorized diversion thereof from the purposes for which they were issued, and did not give to the plaintiff title to the same as owner, and the findings of fact upon which that conclusion is based, must be deemed controlling on this appeal. (S. Nat.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in admitting testimony “ with a view of ascertaining whether or not the entire agreement of the parties was reduced to writing ” after the written lease and the correspondence of the parties in relation thereto had been offered and received in evidence.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in admitting evidence that other newspapers had published the same libel against the plaintiff. It also erred in admitting evidence that plaintiff had commenced suits against other publishers for their publication of the libel. (McCoy v. Crawford, 1 Tappan [Ohio], 277; Young v. Fox, 26 App. Div. 261; Palmer v. N. Y. N. P. Co., 31 App. Div. 210 ; Gray v. B. U. P. Co., 35 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The provisions of the marriage settlement show an intention to subject to its provisions all the property of Sarah Lloyd Coit, in possession or after acquired', including any property acquired after the death of her husband.

<p>1. Promissory Hots — Burden of Proof. Proof that a promissory note was fraudulent as between the payee and makers shifts to a transferee, suing thereon, the burden of proof, and it becomes necessary for him to show not only the payment of value by him, but the circumstances under which he became the holder of the note.</p> <p>3. Trial— Instruction as to Bona Pides. In an action against the members of a partnership as makers, by the transferee, of a promissory note, an instruction that th,e jury might consider, as bearing upon the question of plaintiff’s status as a bona fide holder, the fact that none of its officers or agents took the stand after the burden of proof had been shifted to it by defendant’s proof that the note was fraudulent as between the makers and the payee, held, in view of the state of the record when defendants rested, not to constitute reversible error.</p> <p>3; Instruction as to Bona Fides. It is not prejudicial error for the court in such an action, to instruct the jury that in passing upon the question whether plaintiff knew at the time it discounted, for the payee, the note in suit, which was not on interest, that it had heen given for the payee’s accommodation, they may consider the fact that it had already run one year arid seven months before that time and was due in a month thereafter.</p> <p>4. Partnership — Notice op Dissolution. It is reversible error for the court in such an action to instruct the jury, in substance, that the plaintiff, in law, had been notified of the dissolution of the defendant firm where it appears that notice thereof had been communicated to two commercial agencies, that one or two newspapers in the vicinity had published a local item of the dissolution and that printed notices thereof had been sent out by the- firm’s corporate successor in its business letters; these facts are insufficient to charge the plaintiff, assumed to be a nqn-dealer with the firm, and thus only entitled to general notice, with notice of its dissolution, since to make a general notice legally effectual the only safe rule is that it be seasonably published in one or more of the newspapers in the immediate vicinity.</p> <p>5. Instruction—Statement Contrary to Evidence. It is prejudicial error for the court to charge in such an action that so far as the payee’s evidence shows, the plaintiff made no inquiry with reference to the makers or their financial standing except, “ he says, they consulted a commercial report,” where, during the payee’s examination, a letter from the cashier of another bank to the vice-president of plaintiff -was introduced, in which the writer stated that the paper of the makers held by the payee was good beyond question, and it was proved that the makers were rated in one commercial report as worth over a million dollars, notwithstanding that the statement had reference to the first considerable discount of the makers’ paper made by plaintiff and that the court read the letter to the jury.</p>

This action was brought to enjoin the defendant from excavating, embanking or otherwise interfering with lands under the waters of Great South Bay at Potunk Point, in the town of Southampton, county of Suffolk, and to recover damages for alleged trespasses of like character already committed.

<p>Appeal from ■ a final judgment of the Supreme Court, entered August 3, 1898, upon an order of the Appellate Division of the Supreme Court in the third judicial department, affirming an interlocutory judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>At the time Morris W. Palmer married Alice 0. Huff, his first wife, Sarah F. Swayze, had absented herself for the space of five years without being known to be living during that time, and such second marriage was voidable only, and for all purposes was valid until its nullity should be pronounced by a court of competent authority. (2 R. S. 139, §§ 5, 6; White v. Lowe, 1 Redf. 376; Valleau v. Valleau, 6 Paige, 207; Price v. Price, 124 N. Y. 589; Cropsey v. McKinney, 30 Barb. 54; Griffin v. Banks, 24 How. Pr. 213 ; Fordham v. Gouverneur Village, 5 App. Div. 565; Jones v. Zoller, 29 Hun, 551; 32 Hun, 280.) The presumption is that at the time Morris W. Palmer was married to Alice 0. Huff, his first wife had absented herself for the space of five years without being known to him to be living during that time. (Valleau v. Valleau, 6 Paige, 207; Starr v. Peck, 1 Hill, 270; Willson v. Betts, 4 Den. 201; Hoffman v. Hoffman, 6 App. Div. 84; People v. Pease, 27 N. Y. 45.)</p> <p>There is no evidence in the case that Morris Palmer ever made an inquiry,' or that he had any reason to believe his first wife to be dead, when he married a second time, and such facts will not be presumed. (McCarter v. Camel, 1 Barb. Ch. 463 ; Jones v. Zoller, 32 Hun, 280 ; Cropsey v. McKinney, 30 Barb. 47 ; Alixanian v. Alixanian, 28 Misc. Rep. 638; Spicer v. Spicer, 16 Abb. Pr. [N. S.] 112; Price v. Price, 124 N. Y. 589 ; Safford v. Safford, 31 Abb. [N. C.] 73 ; Smith v. Woodworth, 44 Barb. 196; Amory v. Amory, 6 Robt. 514; Blossom v. Barrett, 37 N. Y. 434.)</p>

This action was brought for the construction of a will, and for the partition of the real estate of the testator. The will, after giving to his son, Vincent 0.

This is an action to recover damages alleged to have been caused by the publication of an article concerning the plaintiff in a newspaper published in the Polish language at the city of Buffalo, known as “ Polak W. Ameryce,” or the Pole in America. The defendant Pitass was the proprietor of said newspaper, the defendant Slisz the editor, and the article in question was á communication signed by the other defendant, Smeja.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 30,1899, 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.

<p>1. New York City — Title to Railroad Viaduct Site in Park Avenue — Presumption that Occupation is under the Legal Title. Where the owner of a tract of land in the city of New York conveyed in 1825 to the city the fee of an avenue, formerly known as Fourth, but now as Park avenue, for street purposes, reserving, however, the trees, buildings and improvements, which avenue had been mapped under chapter 115 of the Laws of 1807, by the city, as well as by the owner, and had been laid down as a street, in both maps, but had no actual existence as such until: 1850-1853, and he assumed in 1832 to convey by deed a strip 24 feet wide through the center of the avenue to the New York and Harlem Railroad Company during its corporate existence, exclusively for railroad purposes, with the right to slope its embankment to the full width of the avenue, which was then 100 feet, which deed was not recorded until 1835, and of which the city had no actual or constructive notice until 1850-1853, when, upon the opening of the avenue, the corporation received a nominal award for its interest in the fee; and where the corporation had been given the right by the state and city to" enter the avenue and use it for the sole purpose of a railroad and lay down its tracks on the said strip under conditions expressly assented to by the company, which gave the city supreme control, contained in two resolutions passed by the common council, one before and the other after its deed from the common grantor, and the latter reciting that the land to be entered upon was owned by the city, and where the corporation had expressly covenanted that it would remove its railroad from the street whenever the city required it, and thereafter entered and successive railroad viaducts were constructed on said strip, :upon' which it operated and has continued to operate its trains, neither the corporation nor its lessee can assert absolute title to the site of the viaducts, under claim of title exclusive of any other right, as against an abutting owner, who in 1895 acquired a lot upon the avenue between One Hundred and Fourteenth and One Hundred and Fifteenth streets, through mesne conveyances from the common grantor, prior to his grant to the railroad company, in an action brought by such owner to enjoin as an interference with the appurtenant easements of light, air and access, the operation of the railroad, and for damages, since, in the absence of any evidence as to character of the original entry by the corporation or the nature of its claim when or after entering, except as may be inferred from the above facts, its entry and occupation must be “deemed to have been made under and in subordination to the legal title ” of the city.</p> <p>2. Action in Equity by Abutting Owner — Measure op Damages. Where predecessors in the title have submitted without complaint to the maintenance by a railroad corporation, in the avenue in front of them, of two successive viaducts, each of which occupied its center for more than twenty years to the-exclusion of all traffic therefrom, an abutting owner, who purchased, in 1895, while a third and higher viaduct was being constructed, under which the cross streets were carried, and who did not object to it until 1897, is not entitled, when suing in equity for damages to easements of light, air and access, to recover upon the same basis as if the avenue had never been a railroad street, but may recover only the net difference, measured in money, between the effect of the old structure and that of the new, during the period that'the latter was in use, after deducting the benefits to access and traffic conferred by it, together with the usual injunction to enforce payment of the damages awarded.</p> <p>3. Easements — Title by Prescription to Extent of User. Where two successive railroad viaducts have each stood for more than twenty years, on lands definitely devoted to street purposes, in front of the premises of an abutting owner and her predecessors in the title, and have been used by the railroads continuously, visibly and exclusively, the corporations obtain, by prescription, as against the abutting owner and without liability at law, a right to maintain a viaduct forever within the same limits and at the same height, and, to the extent of the user, an exclusive right to the easements of light, air and access.</p> <p>4. Higher Viaduct Erected by Governmental Agency — Use of it by Railroads — Time when Liability for Damages begins. * Such corporations cannot be charged with the damages which the easements, of an abutting owner suffered from the construction itself, by a governmental agency, of a third and higher viaduct; but where they use it, although by direction of the legislature, they are liable from the commencement of and during the period of such use after action brought, for such damages as the easements suffered from the increased height of the third viaduct, deducting, however, the benefits received from the increased facility of access afforded by the viaduct to the premises and in the locality.</p> <p>5. Temporary Trestles Encroaching on and Closing Avenue — Damages for Use of them by Railroads. Where the governmental agency, in constructing the third viaduct, erected temporary trestles, which lay outside of the lines of the former viaducts and substantially closed the avenue to traffic, and the corporations used them, although directed to do so by law, they are absolutely liable, without any deduction, for the damages which the easements of the abutting owner suffered during the period of such use.</p> <p>6. Abandonment of Prescriptive Right to Maintain Viaduct. Where railroad corporations have a prescriptive right to maintain in an avenue, a viaduct, its removal by a governmental agency affords no evidence that the corporations intend to abandon their prescriptive right, nor is evidence of such intent afforded by the mere fact that such a viaduct was removed and a similar one immediately constructed upon the same site.</p> <p>7. New York City — Effect of Fourth Avenue Condemnation Proceedings in 1850-1853. The condemnation proceedings of 1850-1858, by which Fourth avenue,, in the city of New York, was widened, created no new easements for abutting owners, so far as the original width of the avenue was concerned.</p>

The facts, so far as material, are stated in the opinion. The reversal was not upon the facts and law, although so stated in the order of reversal. (Otten v. M. Ry. Co., 150 N. Y. 395; Hirshfeld v. Fitzgerald, 157 N. Y. 166 ; Health Dept. v. Dassori, 159 N. Y. 245; Bini v. Smith, 161 N. Y. 120; Gannon v. McGuire, 160 N. Y. 476 ; Lannon v. Lynch, 160 N. Y. 483 ; Code Civ.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The statement contained in the order of affirmance relieves this court from considering any question except the one proposition of law which that certificate presents.

The nature of the action and the facts, so far as material, are stated in the opinion. The order is one finally determining an action and is, therefore, appealable. (Code Civ. Pro. §§ 190, 3228-3230.) This court has not jurisdiction to review the order appealed from. ( Van Arsdale v. King, 155 N. Y. 325; N. Y. S. & T. Co. v. S. G. & E. L. Co., 156 N. Y. 645; City of Johnstown v. Wade, 157 N. Y. 50.)

The nature of the action and the facts, so far as material, are stated in the opinion. The defendants’ driver was grossly negligent. (Moebus v. Herrmann, 108 N. Y. 349 Murphy v. Orr, 96 N. Y. 14; Chisholm v. State, etc., 141 N. Y. 246; Johnson v. S. G. & L. Co., 146 N. Y. 160 ; Bagley v. Bowe, 105 N. Y. 171; Powers v. Silberstein, 108 N. Y. 169; Feeney v. L. I. R. R. Co., 116 N. Y. 375.) The plaintiff was not negligent. The decision of the General Term is anomalous.

<p>1. Appeal — Final Judgment on Reversal. The Appellate Division has no power, upon reversing a judgment which dismisses the complaint in a creditor’s action, to render a final judgment in plaintiff's favor, where the facts were not found by the trial court and there was a question of fraud in the case which did not depend upon documentary evidence, but upon conflicting oral testimony, and it is obvious that further evidence relating thereto may be produced upon a new trial.</p> <p>2, Exception to Decision Dismissing Complaint. To enable the Appellate Division to review a judgment based upon a decision of the trial court in an action tried without a jury, which merely dismisses the complaint, an exception to the decision is necessary whether such decision was made under section 1021 or 1032 of the Code of Civil Procedure.</p> <p>3. Exception to Ruling upon Question op Law. A decision under ■section 1021 of the Code of Civil Procedure, which merely dismisses the plaintiff’s complaint without making any findings of fact, is a ruling upon a question of law made after the cause is finally submitted, and an exception must be taken thereto in order to present the question to a court of review.</p> <p>4. Failure to take Exception—Waiver. The right to object in the Court of Appeals to the failure of the adverse party to take an exception to the decision of the trial court is not waived by failing to make it the subject of a distinct point in the Appellate Division or to make the specific claim that the latter court had no jurisdiction to review the decision, and by stating in such court that the sole question in the case was one relating to the merits, where the brief in such court called attention to the lack of exception's.</p>

nd granting a new trial. This action was brought to partition certain real estate of which one Thomas W. Townsend died seized. 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 order of the Appellate Division appealed from does not state that the reversal was upon the facts, and, therefore, the presumption required by statute is that it was founded only upon errors of law, and the facts stand approved by that court. (Petrie v. Trustees of Hamilton College, 158 N. Y. 458; Bomeisler v. Forster, 154 N. Y. 229; Code Civ.

This action was brought to recover damages alleged to have ■been caused by the erection of an embankment across the west •channel of the Chuctanunda creek, in the town of Amsterdam, and to restrain the defendants from maintaining the same.' The facts, so far as material, are-stated in the opinion. The right to have water flow in its natural channel by a riparian owner only extends to the channel on his own land.

<p>1. Appeal—Review op Nonsuit. A judgment dismissing a complaint, on the ground that plaintiff had failed to make out a cause of action, entered without a decision of the trial court upon the facts established at the trial, is a judgment upon a nonsuit, and may be reviewed in the Court of Appeals.</p> <p>2. Action por Broker’s Commissions ■—Evidence Precluding Non-suit. Proof that the defendant, a lawyer, admitted to the plaintiff, a broker, that he considered the plaintiff to be the “procuring cause” of the sale of defendant’s real estate, is evidence supporting the plaintiff’s cause of action, and a judgment entered upon a nonsuit in an action brought by the broker to recover commissions must be reversed.</p>

<p>1. Insurance Law — Loan below Statutory Standard Made by a Domestic Insurance Company not a Defense to Mortgagor. An offer of a mortgagor to prove, under his answer in foreclosure, that at the time the mortgagee, a domestic insurance company, made him the loan on his premises they were incumbered and were not worth fifty per centum more than the loan, presents no defense to the action, although the Insurance Law (L. 1893, ch. 690, § 13, amd. L. 1893, ch. 113, amd. L. 1893, ch. 735, § 16), in the interest of policyholders, prescribes that standard for such loans, as the statute does not expressly prohibit such a corporation from investing in anything except insurance stocks; and no implica tion, 'that an investment helow the standard is prohibited by the statute and is, therefore, void, should be imported to assist the borrower to escape payment.</p>

Appeal, by permission, from so much of a judgment of the Appellate Division of the Supreme. Court in the fourth judicial department, entered October 18, 1897, as affirms that part of a judgment dismissing the complaint as to the defendant Frederick A. Sherwood, entered upon a decision of the court on trial at an Equity Term.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff upon his own showing made out no cause of action for money had and received to plaintiff’s use. (Carpenter v. Stillwell, 3 Abb. Pr. 459; Dumois v. Hill, 2 App. Div. 525, affg. Dumois v. Hill, 11 Misc. Rep. 242; Dieckerhoff v. Alder, 12 Misc.

<p>1. Specific Performance of Contract — Subject-matter not Identified. Specific performance of a contract for the purchase of bark cannot be ordered when the bark to be delivered on the contract is an unascertained and unidentified portion of a larger quantity.</p> <p>2. Lien or Equity of Purchaser in Case of Unidentified Property. The use of part of the proceeds of notes given on the purchase of a specified quantity of bark, to pay, without the purchaser’s knowledge or direction, certain “peeling” charges on bark of a third party who, by an independent contract with the seller had agreed to deliver to the purchaser the agreed quantity of bark, when that has not been ascertained or identified, but remains part of a greater quantity, does not create any lien upon or equity in the bark in favor of the original purchaser, as against a subsequent purchaser from the third party, who takes it only for an antecedent indebtedness; but the transfer is simply a preference of one creditor over another.</p>

<p>Appeal from a judgment of the General Term of the Superior Court of the city of Hew York, entered December 30, 1895, affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial without a jury.</p> <p>This action was brought to recover the contract price of three Blackman air propellers, erected by plaintiffs upon defendant’s premises, the defendant having refused to pay the same upon the ground that the propellers have not performed the work for which they were erected.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>All prior and contemporaneous negotiations and oral promises in reference to the same subject are merged in the written contract, and the rights and duties of the parties are' to be determined hy that instrument. When that has been executed it is then conclusively presumed that it contains the whole engagement of the parties. (Engelhorn v. Reitlinger, 122 N. Y. 76, 81; Crouch v. Gutmann, 134 N. Y. 45 ; Romeyn v. Sickles, 108 N. Y. 650.) The propriety of a nonsuit must be regarded as though the motion for it had been made at the close of the case, the additional evidence after its denial, furnished by the plaintiff, being taken into account. (S. & S. P. R. Co. v. Thatcher, 11 N. Y. 102; McCotter v. Hooker, 8 N. Y. 497; Jackson v. Leggett, 7 Wend. 377; Tiffany v. St. John, 65 N. Y. 314.) In an action tried by the court and governed by the Constitution and Code as they existed in February, 1894, “ a refusal to make any finding whatever, upon a question of fact, where a request to find thereupon is seasonably made by either party *' * * is a ruling upon a question of law.” (Code Civ. Pro. §§ 993, 1337; Kennedy v. Porter, 109 N. Y. 526.)</p> <p>It was no part of plaintiffs’ contract to repair the defendant’s defective shafting. This was defendant’s duty; and as its failure to do so prevented plaintiffs from demonstrating that the fans could remove the smoke as agreed, they were entitled to recover the contract price. (Byron v. Mayor, etc., 7 N. Y. S. R. 17; Bogardus v. N. Y. L. Ins. Co., 101 N. Y. 328 ; Niblo v. Binsse, 3 Abb. Ct. App. Dec. 375 ; Gallagher v. Nichols, 60 N. Y. 438, 448 ; Wyckoff v. Myers, 44 N. Y. 143 ; Mansfield v. N. Y. C. & H. R. R. R. Co., 102 N. Y. 205.) It is no defense to plaintiffs’ right to recover that the certificate does not cover the thirty days’ approbation. Plaintiffs need only prove the fact of substantial performance. Even where a-certificate is required by the terms of the contract and it can be shown that such certificate is unreasonably withheld, the work having been performed, it is no bar to plaintiffs’ right to recover. (Nolan v. Whitney, 88 N. Y. 648 ; Thomas v. Fleury, 26 N. Y. 32; Stewart v. Keteltas, 36 N. Y. 392; Heckmann v. Pinkney 81 N. Y. 211.)</p>

<p>Appeal from a judgment and order of the Appellate Division of the Supreme Court in the first judicial department, entered July 1, 1897, reversing a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term, and dismissing the complaint.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The reversal of the judgment and the dismissal of the complaint can only be sustained on the ground that the case involved nothing but a pure question of law; if any question of fact was involved, or might possibly be involved on a new trial, or if conflicting inferences arise from the uncontradicted parol testimony, the Appellate Division had no power to reverse the judgment and award judgment absolute against the party who prevailed in the lower court. (Heller v. Cohen, 154 N. Y. 299 ; Benedict v. Arnoux, 154 N. Y. 715 ; Code Civ. Pro. § 1338; Bomeisler v. Forster, 154 N. Y. 229 Snyder v. Seaman,. 157 N. Y. 449; Cudahy v. Rhinehart, 133 N. Y. 248.) The fact that the plaintiff wrote at the end of a statutory consent to the construction and operation of the elevated railroad the words: “If the road must be on Third avenue, I prefer the middle,” and then signed the underwriting in reliance on false representations, is not a defense to this action. (Koehler v. N. Y. E. R. R. Co., 9 App. Div. 450 ; 159 N. Y. 221; Matter of N. Y. E. R. R. Co., 70 N. Y. 327; L. 1875, ch. 606, § 4; Roberts v. N. Y. E. R. R. Co., 155 N. Y. 32; Haviland v. Willets, 141 N. Y. 35, 50, 51; 1 Story Eq. Juris. [13th ed.] §§ 121, 122; Kerr on Fraud & Mistake, 400, 401; Hunt v. Rousmanier, 8 Wheat, 214, 215 ; 2 Pom. Eq. Juris. [2d ed.] 1166, 1168, § 842, note; Wheeler v. Smith, 9 How. 55; Lansdowne v. Lansdowne, 2 J. & W. 205 ; Busch v. Busch, 12 Daly, 476; 102 N. Y. 672 ; Cooper v. Phibbs, L. R. [2 H. L.] 149; Earl Beauchamp v. Winn, L. R. [6 H. L.] 223; 7 Am. & Eng. Ency. of Law, 17; 1 Beach Mod. Eq. Juris. 41.)</p> <p>The plaintiff and his grantee are precluded from maintaining this action by reason of Heimburg’s written consent to the construction and operation of the defendants’ elevated railway in Third avenue, in front of the premises in suit. (White v. M. Ry. Co., 139 N. Y. 19 ; Foote v. M. Ry. Co., 147 N. Y. 370 ; Herzog v. N. Y. E. R. R. Co., 76 Hun, 486 ; 151 N. Y. 665 ; Snell v. Leavitt, 110 N. Y. 595 ; King v. Murphy, 140 Mass. 254; Steere v. Tiffany, 13 R. I. 568; Curtis v. Noonan, 10 Allen, 406; Cartwright v. Maplesden, 53 N. Y. 622; White’s Bank v. Nichols, 64 N. Y. 65.) There is no element of fraud or misrepresentation j>resent in the case to impair or vitiate the consent in question. (Kain v. Larkin, 131 N. Y. 300; Morris v. Talcott, 96 N. Y. 100 ; C. Nat. Bank v. Koehler, 17 N. Y. S. R. 23 ; 117 N. Y. 657; 1 Beach Mod. Eq. Juris. 72, 73 ; Lavisarr v. Washburn, 50 Wis. 200; Marksbury v. Taylor, 10 Bush, 519; Chapmam v. Rose, 56 N. Y. 141; Nat. E. Bank v. Veneman, 43 Hun, 241; N. A. & S. R. R. Co. v. Fields, 10 Ind. 187; Thornberg v. N. & D. R. Co., 14 Ind. 499; Hendrick v. Toole, 29 Mich. 340.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The comptroller is not in such possession of the lands in question that the title of the state to these premises can be tested, impaired or questioned in an action of ejectment against said comptroller. (L. 1895, ch. 395, § 270; L. 1885, ch. 283, § 7; Ensign v. Barse, 107 N. Y. 339 ; People v. Turner, 145 N. Y. 456; Ostrander v. Darling, 127 N. Y. 70; People ex rel. v. Campbell, 22 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred' in denying the motion which was made to dismiss the complaint as against the Eighth Avenue Railroad Company when the plaintiff rested. (Whittaker’s Smith on Negligence, § 421; Wright v. M. Ry.

This action was brought to recover two months’ rent of the premises known as Ho. 787 Eighth avenue, in the city of Hew York. In July, 1893, the plaintiff let the said premises to the defendant for ten years from August 1st, 1893, at the yearly rental of $2,400, payable monthly in advance, and also the extra water rent charged against the defendant for its business.

The nature of the action and the facts, so far as material, are stated in the opinion. At the time the policy was issued, and afterwards until the accident, the setscrew was entirely unguarded, and the plaintiff had express notice of the requirement of the statute to protect it.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff is entitled to a credit on the accounting for the sum of $5,860.93, interest orí loans and advances made hy him to the firm. (Cronin v. Lord, 161 N. Y. 90 ; Meserole v. Hoyt, 161 N. Y. 59; Szuchy v. H. C. & I. Co., 150 N. Y. 219; Farleigh v. Cadman, 159 N. Y. 169; Hilton v. Ernst, 161 N. Y. 226 ; Beardsley v. Cook, 143 N. Y. 144; O'Brien v. B. T. Co., 31 App.

Molloy, sheriff of said county, guilty of a civil contempt of court and imposing-a line upon him of $250, for that he discharged from the county jail of said county Susie Slater Weeks, committed thereto by the mandate and commitment of said Surrogate’s-Court until she should make payment according to said mandate, without receiving such payment, and dismissing the. proceedings. 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 nature of the action and the facts, so far as material,, are stated in the opinion. The action is properly brought against the board of education, and it alone is liable under plaintiff’s contract, and the corporation of the city of New York was not liable to the plaintiff upon his claim.

The appellant also sought to bring up for review the report of the referee; the appellant’s removal as committee ; the appointment of anew one, and the order appointing a special guardian for such incompetent. The facts, so far as material, are stated in the opinion. The Appellate Division erred in assuming to modify the order as was done on the appeal, and for this error the order should be revérsed. (3 Graham &.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The reversal of the order of the Special Term cannot be sustained. (Everitt v. Everitt, 29 N. Y. 39; L. 1896, ch. 547, § 137; Johnson v. Wallis, 3 N. Y. S. R. 140; 112 N. Y. 230; Mott v. Ackerman, 92 N. Y. 539; Bostwick, v. Beach, 103 N. Y. 414; Faile v. Crawford, 30 App. Div. 536; Clark v. Hall, 7 Paige, 382; Pom. Eq. Juris. §§ 135, 368, 372, 1161; Story’s Eq.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant’s liability is upon an express condition and his contract is to be strictly construed. (E. Nat. Bank v. Kaufman, 93 N. Y. 273; Smith v. Molleson, 148 N. Y. 241; Kingsbury v. Westfally 61 N. Y. 356; Ward v. Stahl, 81 N. Y. 406; Grant v. Smith, 46 N. Y. 93 ; De Luka v. Goodwin, 142 N. Y. 194 ; J. H. M. L. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. A new trial should have been granted because of the court’s unwarranted characterization of the defense as “sham.” (Richardson v. Van Nostrand, 5 N. Y. S. R. 419; Butts v. Lorville, 15 Wkly. Dig. 144; Hart v. Ryan, 25 N. Y. S. R. 886 ; Phillips v. N. Y. C. & H. R. R. R. Co., 127 N. Y. 658 ; Chapman v. Erie, Ry.

The nature of the action and the facts, so far as material, are stated in the opinion. The action of the assessors in arbitrarily increasing the amount of the plaintiff’s assessment by the sum of $581 did not render the whole assessment void. (Curtis v. Leavitt, 15 N. Y. 14.) The court had power to reduce the plaintiff’s assessment by the amount in which the assessment had been arbitrarily increased.

The nature of the action and the facts, so far as material, are stated in the opinion. The finding of the trial court as to the ownership of the $700 on deposit with the Union Dime Savings Institution was without evidence to sustain it, and can be reviewed in this court. (Code Civ.

This action was brought to recover upon a policy of fire insurancé alleged to have been renewed by a verbal contract between the plaintiff’s husband, acting as her agent, and one of the firm of Horton Brothers, the agent of the defendant, made about ten days before the expiration of said policy, the premium to be paid and the policy called for within thirty days of the making of the alleged contract. 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 assignee is liable upon the covenant to pay rent which matured while he was in possession. ( Woodruff v. E. Ry. Co., 93 N. Y. 624; Frank v. N. Y., L. E. & W. R. R. Co., 122 N. Y. 219; Holsman v. De Gray, 6 Abb. Pr. 79; Young v. Peyser, 3 Bosw. 308; Astor v. Lent, 6 Bosw. 612; Jones v. Hausmann, 10 Bosw. 168 ; Sayles v. Kerr, 4 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The direction of a verdict on the uncorroborated testimony of a party, or one interested in the event, is error. (Kavanagh v. Wilson, 70 N. Y. 177; Leavitt v. Dodge, 41 N. Y. S. R. 581; Honegger v. Wettstein, 94 N. Y. 252; Spingarm v. Rosenfeld, 4 Misc.

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 furnishing of proofs of loss, as required by this policy, was a condition precedent to plaintiff’s right of recovery. (Titus v. G. F. Ins. Co., 81 N. Y. 411; Blossom v. L. F. Ins. Co., 64 N. Y. 162; Quinlan v. P. W. Ins.

Motions to correct the record by inserting therein a certified copy of a memorandum showing that the decision of the Appellate Division was unanimous, and by striking therefrom certain papers used on a motion to set aside the report of the referee, and to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered September 19, 1899, affirming a judgment in favor of plaintiff entered upon the report of a referee.