Volume 164 — New York Reports

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The order of the Appellate Division is appealable and may be here reviewed. (Code Civ. Pro. §§ 190, 3333, 3334; Matter of Argus Co., 138 N. Y. 557; Matter of Taxpayers, etc., 157 N. Y. 78; People ex rel.

This action was brought to obtain a judgment declaring null and void a certain conveyance, transfer and assignment made by the Farmers’ Loan and Trust Company to the Omaha Water Company, of the property, assets and franchises of the American Water Works Company, purchased by said trust company under foreclosure proceedings, and certain deeds of trust executed by the said Omaha Water Company to the Guaranty Trust Company of Flew York and. to the Farmers’ Loan and Trust…

<p>Distribution of Damages Recovered in ■ Action for Causing Death by Negligence — Code of Civil Procedure, §§ 1902 bt seq. The provisions of the Code of Civil Procedure ($§ 1902 et seq.) authorizing the maintenance of an action where a decedent's death was caused by a wrongful act, neglect or default and providing for the distribution of the damages recovered, were intended by the legislature to create a new cause of action for the benefit, as a class, of the husband or wife and next of kin, and when the class consists of the widow and the father only, the latter is, under section 2732, subdivision 7, entitled to share equally with the widow in a judgment which she has recovered for her husband’s death by negligence, proper deduction being made for the expenses of her action and her commissions upon the recovery as his administratrix.</p> <p>Matter of Snedeker v. Snedeker, 47 Anp. Div. 471, affirmed.</p>

The facts, so far as material, are stated in the opinion. If a short term of office or employment makes manifest to the head of a department that the officer or employee is, for any reason, an unfit or improper person for his position, he should then be dismissed. It is impossible to foretell what term of probation shall be sufficient in any one case, as each must stand by itself..

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered November 29, 1899, affirming an interlocutory judgment in favor of defendant entered upon an order of Special Term overruling a demurrer to the defendant’s answer.

Appeal, by permission, fi'.om an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 4, 1900, modifying and affirming as modified an order of Special Term reviving and continuing an action. On the 5th of October, 1899, an action was brought by-Charles Meekin, as administrator of his deceased daughter, Laurie Meekin, against the Brooklyn Heights Railroad Company, to recover damages for negligently causing her death.

The action was brought to recover damages for defendants’ refusal to accept and pay for a certain lot of coffee bought and sold by the following contract : “ Standard Contract. “New York, Feby. 8, 1893. “ Expected mark. “ 1E. S. & W.’ “{M ’ “ Sold for account of 11. Eppens, Smith and Wiemann Co., to Hess. Littlejohn & Parsons.

Appeal, by permission, from an interlocutory judgment of the Supreme Court, entered April 9, 1900, upon an order of the Appellate Division in the first judicial department, made February 9,1900, affirming a judgment sustaining a demurrer to the complaint, entered upon a decision of the court on trial at Special Term. The nature of the action, the question certified 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 court erred in receiving the testimony of the defendants Elise Boyd and Joseph J. Carberry. The' testimony that was given by them was within- the inhibition of section 829 of the Code of Civil Procedure. The objection was properly raised, and the error in receiving the testimony was in no respect cured on the trial.

The nature of the action and the facts, so far as material,, are stated in the opinion. The order appealed from must be conclusively deemed to have-been based upon errors of law, and this court will adopt the--facts -found by the trial court, and, if necessary to support the judgment entered upon its decision, deem such other-facts found by him as the evidence would have ivarranted..

Cross-appeals from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 5, 1898, affirming an order of Special Term directing that a peremptory writ of mandamus issue commanding the Northern Central Bailway Company to restore a highway in the town of Veteran, Chemung county, where that company’s railroad crosses it, to such condition as will not impair its usefulness, by changing the abutments of said crossing so that…

<p>1. Election Law — Section 56 Directory not Mandatory. The provision of the Election Law (L. 1896, ch. 909, § 56, as amd. L. 1898, ch. 335) that a final order of the court reviewing the determinations and acts of the officers with whom certificates of nomination are filed must be made on or before the last day fixed for filing certificates of nominations to fill vacancies, viz., fifteen days before election, is directory and not mandatory, and where the court has acquired jurisdiction an,d a case has been submitted within the time required by the statute, its order will be effectual although made after the expiration of such time.</p> <p>2. Duty of Courts to Render Speedy Decisions. It is the duty of courts and judges entertaining proceedings under the statute to speedily decide the questions presented to them so that the various steps required by officers may be taken in time to permit the carrying into execution its provisions.</p> <p>Matter of Sennessy, 54 App. Div. 180, reversed.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Rot every agreement -in restraint of trade is unlawful; and whether the agreement at bar is in unlawful restraint of trade or not is a question of fact for a jury. It is not against public policy to insist upon a reasonable profit in place of a ruinous price.

The nature of the action and the facts, so far as material, are stated in the opinion. Notwithstanding the language of the contract bound the defendant to pay a sum “ not exceeding $300 per week,” the defendant, by paying that sum for a long period, without objection and with uniform regularity, bound itself by a practical construction of the contract to pay that sum during the life of the contract. (Kennedy v. Mckone, 10 App. Div. 88.) The action is properly brought.

The nature of the action and the facts, so far as 'material, are stated in the opinion. Exceptions to the rulings of the court on objections to the admission of evidence were taken which call for a reversal. (Strohm v. N. Y., L. E. & W. R. R. Co., 96 N. Y. 305; Tozer v. N. Y. C. & H. R. R. R. Co., 105 N. Y. 617; Jewell v. N. Y. C. & H. R. R. R. Co., 27 App. Div. 500; Kleiner v. T. A. R. R. Co., 162 N. Y. 193.) Ho negligence was shown on the part of the defendant.

<p>1. Municipal Corporation—Power to Regulate Erection of Billboards. The power conferred upon the city of Rochester by its charter “ to license and regulate billposters - * * and to prescribe the terms and conditions upon which any such license shall be granted "* "* * ” (L. 1880, ch. 14, § 40, subd. 31, as amd., L. 1894, ch. 38, § 9), authorizes an ordinance prohibiting the erection of billboards exceeding six feet in height, except with the permission of the common council, after notice in writing of the application for the permit, to the owners, occupants or agents of all houses and lots within a distance of 300 feet from where such billboard is to be erected.</p> <p>3. Constitutionality of Charter. The statute conferring such power on the city was within the power of the legislature, and is not in conflict with any provision of the State or Federal Constitution.</p> <p>3. Reasonableness of Ordinance. Such ordinance is not unreasonable or an undue restraint of a lawful trade or business, nor a restraint upon the lawful and beneficent use of private property.</p> <p>4. Validity of Statute or Ordinance — General Rule. The validity of a statute or ordinance is not to be determined from its effect in a particular case, but upon its general purpose and its efficiency to effect that end. ' When a statute is obviously intended to provide for the safety of a community, and an ordinance under it is reasonable and in compliance with its purpose, both the statute and the ordinance are lawful and must be sustained.</p> <p>Oity of Rochester v. West, 39 App. Div. 135, affirmed.</p>

The judgment grants a perpetual injunction restraining the city of New York from operating its engines, driven wells and pumping stations known as the Spring Creek Pumping Station in the borough of Queens, city of New York, on the conduit line near the Kings county boundary line, and awards past damages to the jfiaintiff in the sum of $6,000, together with the costs of the action.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 18, 1898, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p>

Motion to dismiss an appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 15, 1900, affirming a judgment in favor of plaintiff entered upon a verdict, and an order denying a motion for a new trial.

A motion to dismiss the appeal herein on the grounds that the relief sought was within the discretion of the court and the order of the Appellate Division final, and that the matter was a “ proceeding in the action,” and, therefore, not appeal-.able, was submitted prior to the argument of the appeal and denied, without costs.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial' department, entered November 22, 1897, affirming a judgment in favor of plaintiffs entered upon the report of a referee.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 30, 1898, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court, and an order denying a motion for a new trial..</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, made March 22, 1898, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court, and an order denying a motion for a new trial, 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 May 17, 1897, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court, and an order denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June_ 22, 1898, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court, and an order denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered March 14, 1898, modifying and affirming as modified a judgment in favor of plaintiff entered' upon a decision of the court on trial at Special Term.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 7, 1897, affirming a judgment in favor of plaintiff entered upon a verdict.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 7, 1897, affirming a judgment in favor of plaintiff entered upon a verdict.</p>