Volume 17 — Bedell

The nature of the action and the facts, so far as material, are stated in the opinion. The memorandum was sufficient under the Statute of Frauds. (Mentz v. Newwitter, 122 N. Y. 491; Smith v. Clews, 114 N. Y. 190; Ward v. Hasbrouck, 169 N. Y. 407; Young v. Dake, 5 N. Y. 463; Union Bank v. Coster, 3 N. Y. 203; Church v. Brown, 21 N. Y. 315; Browne on Stat. of Frauds, § 405 ; Miller v. Cook, 23 N. Y. 495; Bradt v. Krank, 164 N. Y. 515; Union Bank v. Leary, 77 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The ■counsel for the plaintiff insisted upon introducing improper testimony in this case and repeatedly referred to it in his summing up to the jury. This improper testimony influenced the jury and the judgment should be reversed. (Cosselmon v, Dunfee, 172 N. Y. 507; Strickland v. N. Y. C. & H. R. R. R. Co., 88 App. Div. 367.) Defendant’s exceptions should not avail.

The nature of the action and the facts, so far as material, •are stated in the opinion. Upon the trial the -defendant established and the referee found that there was no consideration given for the bond and mortgage in suit at the time they were executed, nor for a year prior thereto, ■and they were, therefore, presumptively void as to creditors. (Code Civ.

In proceedings for the improvement of the water front on West street, in the city of Hew York, certain lands belonging to the defendant were taken in inviium, and several awards were made to her, among them being one for $2,500.00, for the buildings mentioned in the lease set forth in the record, under which the plaintiff, as the tenant named in the lease, claims to-be entitled to this award, by virtue- of his alleged ownership of the buildings and his reserved right to…

The action was brought to recover damages of the defendants for the publication of an article in “ The World,” a daily newspaper published in the city of Hew York, which the plaintiff alleges to have been libelous. The complaint alleges that the plaintiff was a subject of the queen of England and was not a resident of the state of Hew York; but that, at the time of the publication of the article complained of, he was a resident of Rio de Janeiro in Brazil, South America.

The nature of the action and the facts, so far as material, are stated in the opinion. Defendants Edgar and Bertha having forced on the sale at a time when they withheld from plaintiff her $30,000, and thus disabled her to bid enough on the property to protect her interest in it, cannot urge to her prejudice her failure to obtain a postponement.

The nature of the action and the facts, so far - as material, are stated in the opinion. Specific performance will never be enforced when it will produce results not within the intent of the parties ,in the absence of laches or inattention on the part of the party resisting the performance in not foreseeing and providing against those results. (Schmidt v. Livingston, 3 Edw. Ch. 213; Gotthelf v. Stranahan, 138 N. Y. 345; Finkel v. Kohn, 38 App.

The nature of the action and the facts, so far as material, are stated in the opinion. There is no direction in this will for an accumulation, and the direction to carry on the business, and after deducting certain payments to add the surplus of profits and gains to the working capital, does not under the facts of this case contravene the statute against accumulations. (Matter of Nesmith, 140 N. Y. 609; Matter of Rogers, 22 App.

Appeal' from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 10, 1903, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granting a new trial. 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 construction given bj the trial court to section 46 of the Tax Law is correct.

The defendants are liable to the bank for the loss sustained by reason of their negligence. (Cook on Corp. [5th ed.] §§ 702, 703 ; Brinckerhoff v. Bostwick, 88 N. Y. 52; Cassidy v. Uhlmann, 170 N. Y. 517; Hun v. Cary, 82 N. Y. 65; Bloom v. Nat. S. Co., 81 Hun, 120; 152 N. Y. 114; Briggs v. Spaulding, 141 U. S. 132; Warren v. Penoyer, 91 Fed. Rep. 589; Bosworth v. Allen, 168 N. Y. 157; Taylor v. C. & M. Ry. Co., 2 Exch. 379; Quinn v. O. R. R. Co., 27 Fed.

<p>1. Appeal — Order of Reversal upon the Law and the Facts Re viewable When No Question of Fact Is Involved. Upon an appeal from an order of the Appellate Division reversing a surrogate’s decree, upon the law and the facts, where the inferences from the uncontradicted evidence all point in one direction so that a reasonable mind can roach hut one conclusion, there is no question of fact and the Court of Appeals has jurisdiction of the appeal.</p> <p>2. Trust ■—Savings Bank Deposits, A deposit by one person of his own money, in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies oi completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the pass hook or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor.</p>

The facts, so far as material, are stated in the opinion. The charge under which this case was submitted to the jury was erroneous, and though there are no exceptions to the charge, it is sought upon this appeal to attack its correctness because of the permission given in section 527 of the Code of Criminal Procedure, and because it is claimed that the verdict is not right and not based upon evidence that is clear and convincing.

<p>Trial—When Testimony of Dependant on Cross Examination as to Other Offenses Cannot Be Contradicted by the Prosecution.</p> <p>Where upon the trial for an indictment for manslaughter, the credibility of the defendant as a witness is assailed by compelling him upon cross examination to give testimony which, although competent for the purpose of impeachment, is collateral to the main issue, the prosecution, at whose instance the collateral evidence is elicited, is bound thereby and has no right to contradict it. Reversing People v. De Garmo, 73 App. Div. 46; s. c. 16 JST. Y-Grim. Rep. 531.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. . Defendant owed plaintiff the duty of exercising ordinary care in moving the girder.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 25, 1994, which reversed an interlocutory judgment of Special Term overruling a demurrer to the complaint.- This appeal is taken in pursuance of leave granted by the Appellate Division allowing the appellant to appeal to this court from such order of reversal and from each and every part thereof.

The facts, so far as material, are stated in the opinion. The scheme advertised constitutes a lottery. (Hull v. Ruggles, 56 N. Y. 424; State v. Mumford, 73 Mo. 647; Negley v. Devlin, 12 Abb.

The facts, so far as material, are stated in the opinion. The court had no power to grant the order appealed from. (L. 1896, ch. 909; Matter of Member of Assembly, 18 Misc. Rep. 391; People ex rel. v. Board of Canvassers, 66 Hun, 265; People ex rel. v. Earley, 16 Misc. Rep. 603; People ex rel. v. Bourke, 30 Misc. Rep. 561; People ex rel. v. Bd. Suprs., 135 N. Y. 522.) A peremptory writ of mandamus should not have been granted.

<p>Evidence — Acts op Police Officer Incompetent upon Question of his Successor’s Alleged Neglect of Duty.—Upon the trial of one acting as a captain of police of a precinct in the city of New York who was charged with neglect of duty in having omitted to suppress a disreputable house therein, when there is testimony tending to show that he had no knowledge of any improper conduct at the house in question, evidence that his predecessor had made an arrangement with a secret service bureau to bribe detectives in the employ of the Society for the Prevention of Crime to furnish information as to contemplated raids upon the house is not only incompetent, but essentially harmful as tending to establish a basis for the assumption that the defendant was no better than his predecessor and operated with the house in the same way, and its reception constitutes reversible error.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff was entitled to recover all the damages, present and prospective, which she suffered or would suffer by reason of the breach.

<p>1. Riparian Rights—Grant by the State for Purposes of Commerce Confers No Exclusive Right to Use of Dock Erected on Lands Granted. A grant by the people of the state “for the purpose of promoting the commerce of our said state and for no other object or purpose whatsoever ” of lands under the water of a navigable river upon which a riparian owner has erected a dock, confers upon him no exclusive right to its use, hut appropriates it to the use of all who are engaged in promoting the purpose of the grant, which is the commerce of the state, subject only to the owner’s right to collect a reasonable compensation for the use.</p> <p>2. Subsequent Grant Without Conditions Confers No Exclusive Right. The fact that such owner subsequently obtained a grant without conditions or reservations does not affect the situation where the state authorities have taken no action to vacate the prior grant, and it is, therefore, binding upon the grantee; and, furthermore, such officers are without power to make an unqualified grant, and it cannot he presumed that they intended to release any of the conditions under which the. grantee was then holding.</p>

<p>Remedies — Audit of Olaim against Town Reviewable by Certiorari Only, Nut by Mandamus. The hearing by a board of town, auditors of a claim against the town, the examination and discussion of the questions involved and the rejection of the claim upon the ground of its illegality constitute an audit which is a quasi judicial determination of the claim reviewable by certiorari only; mandamus will not lie, therefore, to compel the board to re-examine and allow the claim.</p>

<p>Evidence. The testimony of a police captain, who was charged with neglect of duty and was sworn in his own helialf, that after long service he had acquired considerable property, which testimony was elicited by the prosecution for the purpose of creating a suspicion or impression that he must have obtained the property dishonestly, in the absence of any other evidence to that effect, does not support the charge, and constitutes reversible error.</p>

Stuart, deceased. The facts, so far as material, are stated in the opinion. The legacy to the Brooklyn Masonic Guild is exempt from taxation.

<p>1, Murder—Premeditation and Deliberation.</p> <p>To justify a verdict of murder in the first degree there must be proof not only of an intention to kill, but also of a deliberate and premeditated design to kill. Such design must precede the killing by some appreciable space of time. But the time need not be long. It must be sufficient for some reflection and consideration upon the matter, for choice to kill or not to kill, and for the formation of a definite purpose to kill. And when the time is sufficient for this, it matters not how brief it is. The human mind acts with celerity, which it is sometimes impossible to measure, and whether a deliberate and premeditated design to kill was formed must be determined from all the circumstances of the case, and when there is sufficient proof of such premeditation and deliberation, the Court of Appeals will not interfere with the determination of the jury in that respect.</p> <p>2- New Trial—Code Crim. Pro. Sec. £28.</p> <p>The evidence upon the trial of an indictment for murder in the first degree examined and held not to warrant a new trial under section 528 of the Code of Criminal Procedure, upon the ground that justice had not been done.</p> <p>3. Reasonable Doubt.</p> <p>The refusal of the trial court to charge a request, that if the jury is in doubt as to whát actually happened in the room in the house in which the homicide was committed, they must bring in a verdict of not guilty, presents no reversible error, since the request was not limited to a reasonable doubt, but included any doubt, however slight, which the jury might have as to the most trivial act or circumstance that occurred there; especially in a case where the courhas charged fully, clearly and properly as to the right of the act cused to the benefit of every reasonable doubt upon the evidence.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The case should have been submitted to- the jury on the question of fact whether the- defendant deceived the plaintiffs in wrongfully suppressing from them the dangerous condition of the building, which rendered it a public and private nuisance.

The facts, so far as material, are stated in the opinion. The contempt was a civil one, and an appeal lies to this court, especially by a party to the proceeding. (Code Civ. Pro. § 190, subd. 1; Van Arsdale v. King, 155 N. Y. 325; Matter of Strong v. Randall, 177 N. Y. 400; People ex rel. v. Dwyer, 90 N. Y. 402; Sudlow v. Knox, 7 Abb. Pr. [N. S.] 411; E. R. R. Co. v. Ramsey, 45 N. Y. 637; Matter of Dittman, 65 App.

The facts, so far as material, are stated in the opinion. The petitioner’s entire right to a refund rests upon section 225 of the Transfer Act, and as that section does not provide that the comptroller may refund the interest from-the date of payment of the tax, the court had no power to order him to do so.

On December 31, 1901, the dock department of the city of New York granted a permit to the defendants, during the pleasure of the department, to use and occupy “ 200 feet of the south side of Old Slip Pier East, East River, and to construct a dumping board thereonat an annual fee or rental of one thousand dollars.

William C. IIoople died June 17th, 1895. In the proceedings taken for the settlement of ids estate the surrogate of Queens county rendered a decree, dated November 29th, 1895, assessing a transfer tax upon the estate under the provisions of chapter 399 of the Laws of 1892. A portionrof the estate consisted of United States bonds, which were included in the property upon which the tax was based.

<p>1. Murder—Effect of Evidence of Good Character.</p> <p>Evidence of good character may of itself create a reasonable doubt, when without it none would exist, and upon the request of the accused the jury should be charged that such evidence, in the exercise of sound judgment, may be sufficient to warrant an acquittal, even if the rest of the evidence should otherwise appear conclusive.</p> <p>2. Same—Erroneous Denial of Request to Charge.</p> <p>Where the evidence against the accused, upon a trial for murder, is entirely circumstantial and he has produced evidence of his good character and good reputation in the community where he had lived for many years, which is not attacked by the prosecution, and the body of the charge does not cover the point raised by the request, it is reversible error to refuse to charge, when requested by the defendant, “that the presumption which arises as to the defendant’s good character, both from the failure to attack it and from the testimony given, may of itself be sufficient to raise a reasonable doubt as to the defendant’s guilt. ”</p>

McManus, deceased. This action was commenced by the executor of John A. McManus, deceased, to obtain a judicial construction of his-will in the following respects : As to the validity and effect of the devises to his widow and adopted daughter, contained in the second paragraph, and as to the meaning, correct interpretation and effect of the fourth paragraph.

<p>Crimes—Rare—Erroneous Admission of Evidence.</p> <p>Upon the trial of a defendant charged with rape upon the person of a girl twelve years of age, a case in which every precaution should be taken to safe-guard against the prejudice arising from the nature of the crime, it is reversible error—after excluding complainant’s testimony as to what took place between defendant and another girl upon an occasion prior to the commission of the crime charged—to permit the complainant to state, against defendant’s objection and exception, what she said on that occasion and to that girl in defendant’s presence, where the remark, seemingly innocent and harmless when taken alone, was apparently full of suggestiveness and meaning when connected with the context of the testimony given by the complainant; nor is the error cured by the fact that the testimony was immediately stricken out, since there can be little doubt that the episode had produced the precise effect for which the evidence was offered.</p>

This action was brought to construe the will of the late Leonard Lewisolm, who died on the 5th of March, 1902, leaving four sons and five… Held: to convey, transfer, deliver and pay over one eqnal fourth part of the capital of such trust estate with all gains and increase of capital thereof, if any, in fee simple and absolutely to such person; and after such person in trust for whom such trust estate shall be held in trust as aforesaid shall have attained the age of…

The nature of the action and the facts, so far as material, are stated in the opinion. The learned court below adopted an erroneous theory as to the measure of damages. (Snider v. Snider, 160 N. Y. 151; Baird v. Mayor, 96 N. Y. 567; Francis v. Schoellkopf, 53 N. Y. 152; Jutte v. Hughes, 67 N. Y. 267; Rosenheimer v. S. G. L. Co., 36 App.

The plaintiffs, in 1897, recovered a judgment against certain of the defendants, who composed the firm of A. LeEoy & Son. A year and sorrje months afterwards, this action was commenced upon the foundation of that judgment; in which the plaintiffs attacked the good faith of certain transfers of real estate and of personal property* which had been made by some of the judgment debtors, shortly prior to the judgment, and they and their transferees were joined as defendants.

Lee, deceased. The will of George W. Lee, who died on May 7th, 1901, provided for the disposition of his residuary estate as follows :… Held: used and disposed of bj7 the said trustees in the manner hereinafter provided for the disposition of the principal of the said trust fund to be designated for my son.” In the ninth paragraph, the principal of the trust fund designated for the son, upon his death, was to he paid over to the next of kin of the testator and he, further,…

<p>1. Villages — Change of Grade in Streets Therein — What Must Be Alleged and Established to Recover Damages Therefor under the Statute (L. 1897, Oh. 414, § 159). Under the Village Law (L. 1897, ch. 414, § 159) the Supreme Court has no jurisdiction to appoint commissioners to determine and award damages for a change of grade in a village street unless the claimant establishes:, 1. That the village has exclusive control and j urisdiction of the street. 2. That it has changed the grade thereof. 3. That such change has injuriously affected his building or the land adjacent thereto, or the use thereof; and, 4. That he has presented to the board of trustees of the village a verified claim for his alleged damages within sixty days after the change in grade was effected.</p> <p>2. Same — Erroneous Appointment of Commission to Award Damages for Change of Grade. Where the petition of a claimant alleged the facts required by the statute, and an answer was interposed denying all of such facts except that the village had jurisdiction of the streets in question, and alleged that the only work done thereon was to cause the inequalities thereof to conform to an established and existing grade and to lay sidewalks thereon, all of which was done with the consent and approval of petitioner, who had expressly, and by implication, waived the claim set forth in liis petition; and the court, with no proof or determination of the facts in dispute, appointed a commission to determine and award the compensation to which the petitioner claimed to be entitled, and a report awarding damages was made and confirmed without affording the village any opportunity to establish the facts put in issue by the denial and other allegations of the answer, the order appointingtlie commission is void for want of jurisdiction, and the fact that it was granted by a court of general j urisdiction will not sustain the proceeding.</p>

17, 1903, affirming a judgment in favor of plaintiff' entered upon a verdict and an order denying a motion for a new trial. Held: liable for not receiving stone in excess of 5,000 yards. • (Farquhar Co. v. N. R. M. Co., 87 App. Div. 329.) Under the contract the appellant was bound to purchase and the respondent to sell 8,000 cubic yards of stone if so much was required for the work in hand. (Brawley v. U. S., 96 U. S. 171; Miller v. Leo, 35 App.

The facts, so far as material, are stated in the opinion. It was error on the part of the court to sustain the objection of the district attorney to the questions put to the witness, Hattie Ross, by the counsel for the defense.

The facts, so far as material, are stated in the opinion. The order appealed from i's re viewable by this court.

Appeal in each of the above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 22, 1904, which affirmed a determination of the Appellate Term of said Supreme Court affirming a judgment in favor of plaintiff entered upon a decision of the Municipal Court of the city of New York. The nature of the action and the facts, so far as material, are stated in the opinion.

Supreme Court in the second judicial department, entered June 24, 1904, affirming a judgment in favor of plaintiff entered upon a decision of the Municipal Court of the city of Hew York, borough of Brooklyn. The -nature of the action and the facts, so far as material, are stated in the opinion.

<p>Officers—Expiration of Term Does Not Constitute Removal from Office Within the Meaning of the Civil Service Act. The ■Civil Service Act (L. 1899, eh. 870) does not prevent an office from becoming vacant by operation of law through the expiration of the term fixed by statute, and when his term expires an incumbent is not ■“removed” within the meaning of section 31; that provision, therefore, ■of the charter of the city of Jamestown (L.1886, ch. 84, tit. 3, § 3) providing that the term of a policeman “shall he one year,” is not so inconsistent with the later act that a policeman whose term of office had expired ■and who was not reappointed, is entitled to a mandamus compelling his reinstatement upon the ground that he was a veteran and had been “removed” from snob office in violation of the Civil Service Act.</p>

upon an order which affirmed a judgment rendered at a Trial Term for the county of Erie upon a verdict convicting the defendant of the crime of conspiracy to defraud. The facts, so far as material, are stated in the opinion.

Upon the defendant’s motion the complaint was dismissed by the court at the conclusion of the plaintiff’s evidence. The grounds of the motion were twofold : 1. That the plaintiffs had failed to establish a cause of action against the defendant; and, 2. That chapter 543 of the Laws of 1894, upon which the action was based, was unconstitutional.

<p>Trust — Action for Accounting against Executrix of Deceased Trustee — Insufficient Evidence as to What Portion of Trust Fund, if Any, Came into Defendant’s Possession. Where it appears, in an action brought against the executrix of a deceased trustee for an accounting of the trust funds which came into her hands, or the hands of her testator as surviving co-trustee of a testamentary trust, that she had no knowledge of the trust fund and had no books or papers of her testator containing any record of liis proceedings as trustee from which any account could be prepared, and there is no finding of fact, or evidence which would justify a finding, that she had received any part of the trust fund or that the full amount thereof ever came into the hands of her testator, a judgment against her for the full amount of the trust fund, with interest, is unwarranted and erroneous.</p>

The facts, so far as material, are stated in the opinion. Respondent is not entitled to compound interest. (Carpenter v. City of New York, 51 App. Div. 586.) The respondent was not entitled to interest on the award for damages down to the payment of the same. (Barnes v. Mayor, etc., 27 Hun, 236; Frederick v. City of New York, 44 App. Div. 276; Holihan v. City of New York, 33 Misc.

The facts, so far as material, are stated in the opinion. The state transfer tax assessed upon the life estates under said will should he charged against and paid out of the principal of the trust funds respectively, and not out of the income passing to the beneficiaries. (Matter of Hoyt, 44 Misc. Rep. 75; Matter of Vanderbilt, 172 N. Y. 69; Matter of Hoyt, 37 Misc.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 17, 1903, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. The following questions were certified : “1. Was the new ice which formed on Saturday night, March 10th, 1900, as matter of law, the proximate cause of the plaintiff’s accident? “2.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 3, 1903, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint. The following questions were certified: 1.

Appeal, by ¡Dermission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 14, 1903, vyhich affirmed an order of the Rensselaer County Surrogate’s,Court requiring the executrix herein to file a supplemental account. The following questions were certified: “ 1.