Volume 167 — New York Reports

The facts, so far as-material, are stated in the opinion. Neither the Constitution nor the statute designating the tribunal charged with the conduct of proceedings of this character contain any provisions limiting the court’s supervisory judicial functions or duty, or relieving it from performance thereof at any stage of procedure.

' The nature of the action and the facts, so far as material, are stated in the opinion. The principal on the bond violated the Liquor Tax Law during the life of the liquor tax certificate, and the surety thereby became liable to pay the penalty of the bond. (L. 1896, ch. 112, §§ 23, 34.) A liquor tax certificate is only a receipt for money paid. The right to traffic in liquors does not depend upon the certificate, but upon a compliance with the Liquor Tax Law.

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 evidence introduced by the defendants does not establish that there was a conditional delivery of the drafts. (Abrey v. Cruk, L. R. [5 C. P.] 37; Pratt & Whitney Co. v. A. P. T. Co., 50 App. Div. 369 ; Brown v. Spofford, 95 U. S. 474; Mead v. Nat.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 19, 1899, affirming an interlocutory judgment in favor of plaintiffs entered upon a decision of the court at an Equity Term. The nature of the action and the facts, so far as material, are stated in the opinion. The following are the questions certified: First.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 14, 1900, denying a motion to dismiss an appeal from a determination of the common council of the city of Buffalo, made under section 61 of the Bailroad Law, that it is necessary to open, lay out and construct Delavan avenue as a public street across the tracks and right of way of the New York Central and Hudson Biver Bailroad Company.

Cross-appeals from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 3, 1900, which modified and affirmed as modified an order of the surrogate of New York county modifying an order assessing the value of and fixing the transfer tax upon the estate of Zefita, Countess de Bohan-Chabot, deceased. 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 plaintiff’s intestate in voluntarily entering upon the hazardous work of putting out the fire, at the request of his foreman, Seely, assumed all the risks incidental thereto, of which the falling of burning trees and limbs was plainly one of the most direct and obvious. (Crown v. Orr, 140 N. Y. 450; Reinig v. Broadway R. R. Co., 49 Hun, 269; Gaertner v. S. & S., 21 App.

<p>1. Contract—Equitable Pledge. Where, in an action brought by the assignee of a purchaser at a judicial sale to recover moneys claimed, to have been due and owing the receiver of an insolvent newspaper corporation, it appears that the corporation, in consideration of a loan by the defendant to be paid in monthly installments, agreed to appoint him an agent for a specified period to procure advertisements for its paper in a territory specifically designated, he to fix the rates, collect the bills, render monthly statements and receive a specified commission, a provision in the contract that out of the moneys received a specified sum per month should be applied to "the payment of the loan until paid constitutes an equitable pledge of the receipts for that purpose, and the receiver, if he accepts and publishes advertisements procured by the defendant, has no claim for moneys collected by the latter and applied upon the loan to the extent provided for in the contract, and the plaintiff cannot recover.</p> <p>2. Former Adjudication. A prior judgment in an action for winding up the corporation as insolvent, to which the defendant was made a party, which, so far as the record shows, does not adjudicate nor attempt to adjudicate his right to the moneys received by him for the advertisements, does not bar him from asserting his right thereto.</p>

The facts, so far as material, are stated in the opinion. The order appealed from is'a final order in a special proceeding, and is, therefore, reviewable here.

The nature of the action and the facts, so far as material, are stated in the opinion. In a case which of right is triable by jury, the court cannot take from that tribunal the ultimate decision of the fact, unless the fact is either uncontradicted or the contradiction is illusory, or where, to use a current word, the answering evidence is a scintilla merely. (Bagley v. Bowe, 105 N. Y. 171; Luhrs v. Brooklyn Heights R. R. Co., 11 App. Div. 173; 13 App.

25,679, issued to Norman B. Cargill. The facts, so far as material, are stated in the opinion. The petition being wholly upon information and belief, presented no legal evidence which justified the court in making the show cause order.

<p>1. Real Property—Marketable Title -When Title Is in Y endor Personally and not as Trustee. The title to real property is not unmarketable upon the ground that the vendor acquired it as trustee for his children and not personally, where he derived it through the foreclosure of a purchase-money mortgage given by his wife who owned the property and died intestate, leaving children, and on account of his default in paying the interest, which he was unable to pay, and without any collusion, was foreclosed, and bid in by the mortgagee for an amount representing the value of the property, the decree providing that any party might purchase at the sale, and was by him conveyed to the vendor, since his former relation to the property and the children did not prevent him from personally acquiring the title of the mortgagee, which was perfect.</p> <p>2. When Evidence that Property Belonged to Vendor Is Harmless. Testimony of the vendor to the effect that the property was-in the first instance in reality his, and that he furnished the cash paid when the deed was taken in the name of his wife, is not ground for reversing a judgment decreeing the specific performance of a contract for its purchase where the case has been disposed of in the courts below upon the assumption that his wife was the owner of the property at the time of her death.</p>

<p>Beal Property—Marketable Title —Error in Name op Owner in Summons in Eoreclosure Action—Ex Parte Order Amending Summons. The title to real property acquired under foreclosure sale is not unmarketable because of an error in the name of the owner in the summons and complaint in the foreclosure action, which after personal service and although she had not appeared was corrected by an ex parte order, inserting her true name therein, upon the ground that the court had not acquired jurisdiction, and, therefore, had no power to amend, where the court properly determined that the defendant was fairly apprised that she was the party the action was intended to affect, since, by its determination to that effect, it acquired jurisdiction, and under sections 721 and 723 of the Code of Civil Procedure, relating to defects in process cured by judgment and amendments of process, it had the power and it was its duty to grant the order.</p>

The nature of the proceeding and the facts, so far as materia], are stated in the opinion. The final order entered in the original court on the referee’s report, in strict conformity with the express directions contained in the order of reference, became binding and conclusive upon the respondent accordingly.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 16, 1899, reversing a judgment in favor of defendant entered upon a dismissal of the complaint and granting a new trial.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, made November 21, 1899, reversing a judgment in favor of defendant entered upon the report of a referee 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 April 21, 1899, affirming a judgment in favor of defendants 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 first judicial department, entered June 20, 1899, affirming a judgment in favor of plaintiff entered upon a verdict 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 July 26, 1899, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.</p>

Appeal fren a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 2,1900, affirming a judgment in favor of… Held: at which a resolution was passed for the execution of the $35,000 bond, and this bond was accordingly-executed. Thereafter and upon the same day a deed was delivered by the referee to the New York corporation of the Hoffman Flouse property so purchased by it, and said corporation went into possession.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 7, 1899, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term 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 July 14, 1899, affirming-a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial -Term.</p>

Appeal by permission from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 27, 1899, modifying and affirming as modified an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 9,1899, affirming a judgment in favor of plaintiff entered upon a verdict 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 December 6, 1899, affirming a judgment in favor of plaintiff 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 third judicial department, entered July 7, 1899, reversing a judgment in favor of defendant entered upon a verdict directed by the court and granting a new trial.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 28,1899, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and granting a new trial.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 3, 1900, sustaining plaintiff’s exceptions ordered to be heard in the first instance by the Appellate Division and granting a motion for a new trial.</p>

Cross-appeals from two judgments of the Appellate Division of the Supreme Court in the first judicial department, entered April 7, 1899, affirming two judgments in favor of plaintiff, entered upon the report of a referee.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 14, 1900, reversing a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury and granting a new trial.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered February 24, 1899, confirming a determination of the comptroller of the state of New York assessing a franchise tax on the relator and dismissing a writ of certiorari to review the same.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 28, 1900, which reversed an order of the Rockland County Court directing the board of supervisors of that county to refund to the petitioners certain amounts paid for taxes.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, made April 4, 1901, affirming an order of Special Term quashing a writ of certiorari to review the action of the defendants in assessing the capital of the relator invested in its business in the city of New York.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 16,1901, which affirmed an order of Special Term denying a motion to vacate an order appointing a temporary receiver in a voluntary dissolution proceeding. The following are the questions certified : First.