Volume 172 — New York Reports

The nature of the action and the facts, so far as material, are stated in the opinion. The reduction of plaintiff’s damages was erroneus. (Kernochan v. N. Y. El. R. B. Co., 128 N. Y. 575; Stowers v. Gilbert, 156 N. Y. 601; Uline v. N. Y. C. & H R. R. R. Co., 101 N.Y. 98; Pond y. M. El.

Harrington and Stephen M. Hoye, as executors of and trustees under the will of William Gorden, deceased. William Gorden, a resident of the borough of Brooklyn, died in January, 1899, leaving him surviving a widow, twelve children and several grandchildren, the issue of a deceased daughter. Seven of his children were infants and one was of unsound mind.

A weal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 21, 1900, affirming a judgment in favor of defendants entered upon a dismissal of the complaint hy the court at a Special Term.

A short time prior to April 1, 1900, two companies owned all of the elevated railroads in Brooklyn, but at that date defendant acquired by lease possession and control of all such elevated roads, and has since operated them. ' Defendant’s elevated railroad system extends from the termini at the Brooklyn Bridge and Broadway Ferry to the terminus at Cypress Ilills, a system of two main lines, one from Brooklyn Bridge and one from Broadway Ferry, converging at East Hew York,…

<p>Public Health Law — L. 1893, Oh. 661, § 148, Curing Defects in Imperfect Registration of Physicians, Retroactive. Where a physician, who came from another state and possessed all the qualifications required by the statute for the practice of medicine in this state, upon his registration in 1886, through inadvertence, omitted to file with his affidavit the indorsement of a medical school in the state, as required by the statute (L. 1880, cli. 513, § 4), the effect of which was to render the registration imperfect, the registration in 1899 of a regents’ certificate curing the defect, issued pursuant to section 148 of the Public Health Law (L. 1893, cli. 661), validates the original registration from the date of its filing, wipes out all liability to prosecution for the various misdemeanors committed by him in practicing during the time of imperfect registration, and renders legal his contracts of employment.</p>

<p>1. Tbial—Testimony of Deceased Witness may be Read at Second Tbial—Code Civil Pboo., Sec. 830.</p> <p>While there is no express provision of the Code of Criminal Procedure authorizing the reading on a second trial of the testimony of a deceased witness sworn at the first trial of a criminal action, section 830 of the Code of Civil Procedure, authorizing the reading of such testimony taken at the former trial of an action, is also applicable to a criminal action, since the word “ action,” as defined in section 3333 of the Code of Civil Procedure, refers to both civil and criminal actions. »</p> <p>2. Same—Code Cbim. Pboo., Sec. 8, Sued. 3.</p> <p>The right of the accused to be confronted with the witnesses against him in the presence of the court, provided for in subdivision 3 of section 8 of the Code of Criminal Procedure, which is merely a reenactment of section 14 of the Bill of Rights, is not violated by the reading of such testimony on the second trial, where only such testimony is read as was taken on the first trial in the presence of the accused, represented by counsel exercising the full right of cross-examination, and, therefore, the accused has been once confronted by the. witness against him in the presence of the court.</p>

This was a proceeding to compel the board of supervisors-of Westchester county to refund a tax alleged to have been illegally assessed upon certain property of the appellant. He applied to the County Court for the usual order under the County Law and in his affidavit set forth the following facts, none of which were denied by the respondent.

Hopkins, deceased. The facts, so far as material, are stated in the opinion. The testimony of the witness Carvalho should have been excluded, being altogether incompetent, and the witness himself being unqualified. (Dougherty v. Milliken, 163 N. Y. 527; People v. Molineux, 168 N. Y. 264; Clason v. Bailey, 14 Johns. 483; Taylor on Ev. § 1877; Matter of Taylor, 10 Abb. Pr. [N. S.] 300; Taylor v. Crowinshield, 5 N. Y. Leg.

The nature of the action and the facts, so far as material, are stated in the opinion. The widow is not entitled to dower if the acceptance of it by her is inconsistent with other provisions of the will for her benefit. (Adsit v. Adsit, 2 Johns. Ch. 448 ; Savage v. Burnham, 17 N. Y. 577.) The provision for the plaintiff in her husband’s will is inconsistent with her claim for dower. (Matter of Zahrt, 94 N. Y. 609 ; Koezly v. Koezly, 31 Misc.

The action was to foreclose a mechanic’s lien upon real property owned by the appellant situated on ¡Riverside drive in the city of Bew York. It consisted of six lots which the appellant, by an executory contract, sold to the defendant Dexter for one hundred thousand dollars.

The facts, so far as material, are stated in the opinion. The appellant is a county officer. (Matter of Brenner, 67 App. Div. 375; 170 N. Y. 185.) Prior to the act of 1901 there never was in the county of New York any such county officer as a commis-. sionef of jurors.

Davenport, as administrator of the estate of Sarah L. Cullen, deceased. The facts, so far as material, are stated in the opinion. By the Civil Code, prior to 1898, in this case uncles, aunts, nephews and nieces would have divided the estate. (Durant v. Prestwood, 1 Atk. 454; Hurtin v. Proal, 3 Bradf. 414.) The amendment of 1898 worked no change in the scheme of distribution to those who took in their own right. (Code Civ.

In this proceeding the plaintiff seeks to condemn certain-lands for its use. It appears from its petition that it is engaged in the operation of a steam railroad between Johnson ville, Rensselaer county, and Greenwich, Washington county, H. Y., and that it is the successor, through foreclosure and reorganization proceedings in 1819, of the Union Village and Johnsonville railroad, a corporation organized in 1866.

This action was brought to reform a policy of life insurance as to the name of the beneficiary and to recover upon it as reformed. Omitting the formal parts, the allegations of the complaint were that- “ Prior to the Í9tli of October, 1896, one Max Fehrman was indebted to the plaintiff (whose name was then Caroline Lampp, she having since married her husband William Steinbach) in divers sums of money which lie was unable to pay.

Lawrence, deceased. The Union Trust Company of New York city commenced this proceeding on March 15, 1901, in the Surrogate’s Court of New York county to secure a judicial settlement of its account as trustee under the will of George P. Lawrence, deceased. A final decree was had therein on September 6, 1901. The Union Trust Company appealed to the Appellate Division from so much of the decree as denied its right to commissions both as executor and trustee.

The facts, so far as material, are stated in the opinion. The Grade Crossing Law does not apply to the proceeding which was vacated and set aside by the order appealed from.

The facts, so far as material, are stated in the opinion. The proceeding which resulted in the alleged decree of February 7, 1900, was not binding or in any way conclusive upon the appellant, as the Surrogate’s Court acquired no jurisdiction of his person. Pie was not cited therein, neither did he appear. (Matter of Killan, 66 App. Div. 312; Code Civ.

<p>1. Joint Stock Associations — Shares Are Personal Property and Taxable as Such. The shares of a joint stock association constitute personal property and are taxable as such, irrespective of the character of the property represented thereby, whether real or personal.</p> <p>2. Interest of Deceased Shareholder Subject to Transfer Tax. The interest of a deceased shareholder in the realty of a joint stock association is personal property, and under chapter 215 of the Laws of 1891 a bequest thereof is subject to the transfer tax.</p> <p>3. Method of Establishing Value of Shares. Where the shares are not listed upon the stock exchange or sold in the open market, the value of the realty may be properly considered upon an appraisal in order that their value may be established.</p> <p>4. Authorities Collated. The distinction between joint stock associa tions and corporations pointed out and authorities relating thereto discussed.</p>

Motion, under the provision of section 536 of chapter 369 of the Laws of 1902, to extend time in which to move argument of appeal from judgment of death.

<p>Transfer Tax on Succession of Life Tenant — Legislation Required to Make Imposition of Tax Fairer to Life Tenant. Although the provision of the Transfer Tax Act (L.. 1896, ch. 908, § 230; amd., L. 1899, ch. 76) requiring the transfer tax upon contingent remainders to be paid forthwith out of the. corpus of the estate transferred, has been held to be constitutional, because the rate or amount of tax on the succession of the life tenant is within the discretion of the legislature to prescribe and is, in effect, simply the imposition of an additional tax on the life tenant (See Matter of Vanderbilt, 172 N. T. 69), it seems, bearing in mind the general character of the tax and that the legislature has deemed it right to prescribe different rates of taxation, depending on the relation of the legatee or devisee to the deceased, that, if it is desired to make taxes on remainders payable Immediately, it would be fairer to the life tenant to have the tax assessed at the lowest rate of any succession provided for by the will, and that, in case the remainder eventually vesting should prove taxable at á higher rate, then such increased tax should be.payable at the time of its enjoyment, and that legislation to that effect should be enacted.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 19, 1902, which reversed an order of Special Term denying a motion to quash a writ of certiorari to review the proceeding of the defendants in assessing property owned by the relators for the purposes of taxation and granted such motion.</p>

<p>. Appeal — Court of Appeals Has no Power to Set Aside Verdict AGAINqst the Weight of Evidence. Where c. judgment entered upon a verdict has some evidence to support it, however unworthy of belief it may seem, the Court of Appeals has no power to reverse the judgment solely upon that ground; that power rests with the Appellate Division of the Supreme Court.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 14, 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 fourth judicial department, entered May 8,1901, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at an Equity Term.</p>

<p>Appeal from a judgment entered July 18, 1901, upon an order of the Appellate Division of the Supreme Court in the first judicial department affirming an interlocutory judgment of Special Term overruling a demurrer to the complaint.</p>

Cross-appeals from; an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 11, 1902, which reversed a judgment of the Court of General Sessions of the Peace in the county of New York entered upon a verdict convicting the defendant of the crime of bribery, affirmed an order of said Court of General Sessions denying defendant’s motion for a new trial, in so far as the same is based upon questions of fact, and dismissed an appeal…

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 16, 1901, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and an order denying a motion for a new trial.</p>