Volume 171 — New York Reports

Cross-appeals from an order of the Appellate Division of the Supreme Court in the first judicial department, made February 7, 1902, which reversed an order of Special Term and directed the payment to the petitioner pro rata with other creditors of Price, McCormick & Company of the claim set forth in the petition. The nature of the proceeding and the facts, so far as material, are stated in the opinion.

County Surrogate’s Court denying a motion for an order declaring the estate of Walden Pell, 1st, deceased, exempt from taxation under the Transfer Tax Act. The facts, so far as material, are stated in the opinion. The provisions of the Transfer Tax Law cannot apply when there is no transfer of property whatever.

This appeal is taken by permission of the Appellate Division upon two questions certified to this court for decision : First. “ Whether the demurrer to said answer ought to have been overruled.” Second. “ Whether the provisions of the charter of the Greater Hew York, under which elections were had of city magistrates in the borough of Brooklyn, city of Hew York, at the general election in 1901, were unconstitutional.” The nature of the action and the facts, so far as…

On the 17th day of April, 1899, the plaintiff, a boy between seven and eight years of age, was struck by one of the defendant’s north-bound cable cars on Columbus .avenue, between Ninety-third and Ninety-fourth streets, in the city of New York. This action is brought to recover damages for the injuries lie thus received. The accident occurred between five and six o’clock in the afternoon. The day was clear and bright.

The nature of the action and the facts, so far as material, are stated in the opinion. If Margaret Hunter had sons, Thomas and John, when the accounts were opened, and they are now alive, the moneys in question belong to them; if they are dead, the moneys belong to their personal representatives. And the fact that they may have died after the accounts were opened, but before their mother, makes no difference. (Bishop v. Seamen's Bank, 33 App.

<p>Evidence — Secondary Proof op Contents op Instrument not Shown to Be Lost. In an action against a publishing company to recover the amount of due bills which it had agreed to pay in advertising, contents of an alleged written stipulation, the making of which was denied by defendant, cannot be proved by plaintiff where he testified that he had last seen the stipulation with-the attorneys for the defendant and that they had promised to send it to him if found, but no evidence was produced to show that it had been lost or that at the time of the trial it was in the hands of such attorneys and could not be produced.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The drawer is bound for the whole amount if his own negligence has facilitated or invited the fraud done by raising the check. (Bank of Commerce v. Union Bank, 3 N. Y. 230 ; 2 Daniel on Neg. Inst. [2d ed.] 608, § 1659; Goddard v. M. Bank, 4 N. Y. 147; L. T. & T. Co. v. N. Nat. Bank, 2 Bank Cas. [Penn.] 588; I. C. Bank v. F. P. Nat. Bank, 159 Penn.

<p>Constitutional Law—New York City — Laws of 1900, Ch. 725, Conferring Pensions upon Teachers who Retired Before Establishment of Pension System Unconstitutional. Chapter 725 of the Laws of 1900, directing the board of education of the city of New York to place certain» persons who had been retired as teachers before the establishment of the pension system by chapter 296 of the Laws of 1894, on the list of retired teachers entitled to receive as annuities one-half the salaries paid to them while in service, and to pay to them such annuities from the time of their respective retirements, not'earlier than the enactment of the statute of 1894, is unconstitutional so far as it relates to teachers who retired before the enactment of that statute, it being an appropriation of city moneys to persons who had been employees at a time when no pension system was provided by law which must be regarded as a gratuity or extra compensation to a public servant, and is, therefore, within the prohibition of section 28 of article 8 of the Constitution.</p>

The facts, so far as material, are stated in the opinions. The principal of the fund in question vested in Edmund M, Devoe at the time of the death of the testatrix. (Barker v. Woods, 1 Sandf.

The nature of the action and the facts, so far as material, are stated in the opinion. The proceedings on the part of the defendant constituted a valid, legal and binding contract on its part to accept the deed and pay the purchase price of the premises in question. (L. 1897, ch. 361; 2 Dillon on Mun.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff was not only a trespasser, but he was a criminal engaged deliberately in the commission of crime. (Penal Code, § 640, subd. 12.) The acts proven do not constitute negligence as between these parties.

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint does not state facts sufficient to constitute a cause of action at law. (Kidd v. Horry, 28 Fed. Rep. 766; Tobias v. Harland, 4 Wend. 537; Le Massena v. Storm, 62 App. Div. 150; Kennedy v. Pub. Co., 41 Hun, 422; Bosi v. Herald Co., 33 Misc.

<p>Appeal from a judgment of the Appellate Division of the Supreme- Court in the fourth judicial department, entered November 26, 1900, affirming a judgment in favor of defendants entered upon a decision of the court on trial at Special Term.</p> <p>The plaintiff is the widow of Wilson G. Hunt, deceased. She brought this action to obtain specific performance of an ante-nuptial contract. Said Wilson G. Hunt died on October 14th, 1897, and during the pendency of this action. The defendants, who were substituted in his place, are bis heirs at law and next of kin. By Ms last will and testament, dated and executed on August 30th, 1Í397, said Hunt bequeathed substantially all of bis estate, consisting of both real and personal property, to the present defendants. Proceedings for the probate of said will were pending at the time of the decision of the trial court herein. Further facts appear in the opinion.</p> <p>In cases where a certain and definite contract is clearly established, even though it involves an agreement to leave property by will, and has been partly performed, equity in a case free from all objections, on account of circumstances rendering the claim inequitable, will compel specific performance. (Lobdell v. Lobdell, 36 N. Y. 327 ; Godine v. Kidd, 64 Hun, 585; Percell v. Stryker, 41 N. Y. 480; Shakespeare v. Markham, 10 Hun, 311; 72 N. Y. 406; Healy v. Healy, 55 App. Div. 315 ; Chase v. Peck, 21 N. Y. 581; Huested v. Ingraham, 75 N. Y. 251; Piper v. Hoard, 107 N. Y. 73; Johnson v. Spicer, 107 N. Y. 185; Pom. on Spec. Perf. 203; Heath v. Heath, 42 N. Y. Supp. 1087.) The contract was made upon a good, sufficient and valuable consideration, and should be enforced in equity. (Piper v. Hoard, 107 N. Y. 73; Sterry v. Arden, 1 Johns. Ch. 260; Braddish v. Gibbs, 3 Johns. Ch. 523; 4 Kent’s Com. 542; Campion v. Cotton, 17 Ves. 264; Schouler on Dom. Rel. 268; Peck v. Vandermark, 33 Hun, 214; 99 N. Y. 29; Wright v. Wright, 59 Barb. 505 ; 54 N. Y. 437 ; Webster v. Zielly, 52 Barb. 483; Hamer v. Sidway, 124 N. Y. 538 ; De Barante v. Gott, 6 Barb. 492.) The agreement was fully performed. Hunt waived the Statute of Frauds, and it cannot now be invoked by his representatives. (Wood v. Rabe, 96 N. Y. 422; Pom. on Spec. Perf. 386, 387 ; Pom. Eq. Juris. 393; Story’s Eq. Juris. § 64g; Burch v. Newbury, 1 Barb. 649 ; Deposit v. Rogers, 166 N. Y. 380; Brown v. Crabb, 156 N. Y. 447; Matter of N. Y., L. & W. R. R. Co., 98 N. Y. 447 ; Matter of Cooper, 93 N. Y. 507; Embury v. Connor, 3 N. Y. 511; Mayor, etc., v. M. R. Co., 143 N. Y. 1; Sentennis v. Ladew, 140 N. Y. 463, 466; Crane v. Powell, 139 N. Y. 379; Hamer v. Sidway, 124 N. Y. 538.) Plaintiff having fully performed the contract on her part, and Hunt having partly performed the contract on his part by the execution of his Will and the delivery of a part of his property, constitute such acts of part performance as take the case out of the operation of the statute. (Pom. on Cont. [2d ed.] § 104; Browne on Statute of Frauds, § 446ab; 1 Pom. Eq. Juris. 86; Winnie v. Winnie, 166 N. Y. 263 : Cooley v. Lobdell, 153 N. Y. 596 ; Mentz v. Newwitter, 122 N. Y. 491; Brantingham v. Huff, 43 App. Div. 414; Hope v. Balen, 58 N. Y. 380; Hutchens v. Hebbard, 34 N. Y. 24; Chapin v. Dobson, 78 N. Y. 74; Julliard v. Chaffee, 92 N. Y. 529 ; Bolman v. Overall, 80 Ala. 451 ; Stephens v. Reynolds, 6 N. Y. 454.) Equity will not allow the defendants to invoke the Statute of Frauds to aid them in the perpetration of a fraud. (1 Pom. Eq. Juris. 472, § 430 ; McCormick v. Grogan, 4 H. L. Cas. 82 ; Newman v. Nellis, 97 N. Y. 285; Wood v. Rabe, 96 N. Y. 414; Colby v. Colby, 81 Hun, 221; Dunham v. Taylor, 29 Ga. 167; Lowe v. Lowe, 30 Ga. 528; Bond v. Hopkins, 1 S. & L. 433; Ryan v. Dox, 34 N. Y. 307 ; De Hierapolis v. Reilly, 44 App. Div. 22 ; Miller v. Ball, 64 N. Y. 286.)</p> <p>The marriage of the parties was not such an act of part performance of the alleged ante-nuptial parol agreement as to take the same out of the Statute of Frauds, and it is well settled that a court of equity will not enforce such a contract. (Brown v. Conger, 8 Hun, 625; Lamb v. Lamb, 18 App. Div. 250; Ennis v. Ennis, 48 Hun, 11; White v. Denike, 53 App. Div. 320; Dygert v. Remerschnider, 32 N. Y. 629; Read v. Livingston, 3 Johns. Ch. 481; Borst v. Corey, 16 Barb. 136; Matter of Willoughby, 11 Paige, 257; Dung v. Parker, 52 N. Y. 494 ; Levy v. Brush, 45 N. Y. 589.) The plaintiff cannot avail herself of the act of the decedent in executing the alleged will of October 17,1896, in her favor, by making such act the basis for equitable relief, and such act of the decedent did not constitute such a part performance of the alleged ante-nuptial agreement as to take the latter out of the operation of the statute. (Levy v. Brush, 45 N. Y. 589; Bauman v. Holzhausen, 26 Hun, 505; Cagger v. Lansing, 43 N. Y. 550; Rathbun v. Rathbun, 6 Barb. 98; Dung v. Parker, 52 N. Y. 494; Lathrop v. Hoyt, 7 Barb. 59 ; Wheeler v. Reynolds, 66 N. Y. 227; Caton v. Caton, L. R. [1 Ch. Div.] 137; Buckmaster v. Harrop, 7 Ves. 341; Suchett v. Williamson, 37 Mo. 388.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The contract alleged in the complaint was not malitm in se. (Brown v. West, 9 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The crucial question in this case being as to whether or not the respondent’s decedent owned the hops, after she had given her evidence as to the facts that might prove that she owned the hops, it was error to permit her to pronounce án opinion upon the very question to be determined by the jury, to wit, the ownership of the hops.

The facts, so far as material, are stated in the opinion. The power to compel the intersection and connection of two railroads is not confined exclusively to steam railroads. (Matter of W. S & A. R. R. Co. v. S. B. & N. Y. R. R. Co., 115 N. Y. 442 ; P. R. Ry. Co. v. S. I. R. Co., 71 Hun, 179; B. R. R. Co. v. N. Y., L. E. c&W. R. Co., 72 Hun, 583 ; Connolly v. N. Y. C. & H. R. R. R. Co., 35 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 10, 1900, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 17, 1901, affirming a judgment in favor of the 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 third judicial department, entered July 1, 1901, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 20, 1901, which modified and affirmed as modified an order of Special Term .vacating an assessment for the purpose of taxation in the year 1899 of the capital and surplus of the relator, and .directed a reassessment.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered Rovember 30, 1900, affirming 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 fourth judicial department, entered December 29, 1900, modifying, and affirming as modified, a judgment in favor of plaintiff 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 April 10, 1901, affirming 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 first judicial department, entered June 21, 1901, 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 second judicial department, entered January 16,1901, 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 an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 28, 1902, which reversed an order of Special Term dismissing a writ of habeas corpus and remanding the relator to the custody of the defendant as sheriff of the county of Kings.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 1, 1902, which reversed an order of the New York County Surrogate’s Court declaring certain property belonging to the estate of Timothy B. Blackstone, deceased, exempt from a transfer tax.</p> <p>Also motions to correct return on and to dismiss said appeal.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 21,1901, which affirmed an order of Special Term granting' a motion for a writ - of prohibition restraining the defendant from hearing and determining charges preferred by him against the relator as police and fire commissioner of the city of Utica.</p>

<p>Motion to amend remittitur.</p>