Volume 173 — New York Reports

This action was brought to recover damages alleged to have been caused by the negligence of the defendants resulting in the death of the plaintiff’s intestate. At the trial the jury rendered a verdict for the plaintiff, but the judgment entered thereon was reversed by the Appellate Division.

The action is in ejectment, to recover the possession of certain described premises in Long Island City, county of Queens. The complaint alleged that a condition, upon which their conveyance had been made, had been broken, that the plaintiff was entitled to their possession, and that the defendant was in possession of the premises, or claimed to be entitled to their possession, as successor of Long Island City, the grantee in the conveyance.

The nature of the action and the facts, so far as material, are stated in the opinion. No negligence of the defendant causing or contributing to the plaintiff’s injury was shown. (Belts, v. City of Yonkers, 148 N. Y. 67; Taylor v. City of Yonkers, 105 N. Y. 202; Ring v. City of Cohoes, 77 N. Y. 83; Searles v. M. R. Co., 101 N. Y. 661.) The injury was caused by the negligence of defendant.

<p>Negligence — Injury to One Stealing Ride upon Railroad Train. A railroad company owes no duty to one stealing a ride upon one of its trains except to refrain from wantonly or unnecessarily injuring him, and where in an action of negligence brought against it by the trespasser for injuries alleged to have been received in being kicked off from the train there is no evidence upon which the jury could find that the defendant’s servants or any of them assaulted the plaintiff and inflicted the injury, a judgment entered upon a verdict in his favor must be reversed.</p>

The nature of the controversy and the facts, so far as material, are stated in the opinion. In determining the defendant’s share of the loss, under the provision for its apportionment among the several insurers, the amount of the “ whole insurance ” must be computed without reference to the co-insurance clauses in the other policies. (Chesborough v. H. Ins.

Cross-appeals from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 20, 1902, which modified and affirmed as modified a determination of the defendant assessing a franchise tax against the relator for the year ending October 31, 1900. The facts, so far as material, are stated in the opinion.

The action was brought to recover $7,584, with interest; a sum, which, as the complaint alleges, was paid by the plaintiff to the defendant under a mistake of fact. The following facts were disclosed by the evidence upon the trial.

Sheldon of certain of the assigned property. The facts, so far as material, are stated in the opinion. There was no power in the County Court to set aside the sales in these proceedings. (Fisher v. Hersey, 78 N. Y. 387; Matter of Rider, 23 Hun, 91.) The decree of the County Court setting aside and vacating the sales made to appellant is irregular and void.

The facts, so far as material, are stated in the opinion. The contention that the audit of the judgment by the board of supervisors, the including of the amount audited in the general tax levy and the receipt of the tax by the county treasurer in ordinary course of law constituted full performance by the defendant of the requirements of this judgment cannot be sustained.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 4, 1902, which reversed an order of Special Term denying a motion to vacate an attachment and granted said motion.

. The facts, so far as material, are stated in the opinion. The fact that over seven years have elapsed since the disappearance of Ernst Hopfensack is sufficient proof for the granting of the order. (Durando v. Durando, 23 N. Y. 331; Cox v. Ellsworth, 26 N. W. Rep. 460; Stockbridge v. Stockbridge, 14 N. E. Rep. 928.)

Supreme Court in the second' judicial department, entered January 20, 1902, in favor of defendants upon the submission of a controversy under section 12Y9 of the Code of Civil Procedure. This was a submission to the Appellate Division of the Supreme Court, in the second judicial department, of a controversy between the parties to an agreement, for the sale by the plaintiff and for the purchase by the defendants of real estate.

The nature of the action and the facts, so far as material, are stated in the opinion. The personal representatives of the decedent Ophelia C. Dounce were properly joined in this action. The complaint was properly framed and under the evidence the plaintiff was entitled to recover against all of the defendants.

The nature of the action and the facts, so far as material, are stated in the opinion. The summing up was not, confined to the evidence, but was an inflammatory appeal to the passions based on no evidence. (Williams v. B. E. R. R. Co., 126 N. Y. 96; People v. Muller, 167 N. Y. 247; People v. Fielding, 158 N. Y. 542; Keiley v. G. L. Ins. Co., 57 N. Y. 638; Halpern v. N. R. R. Co., 16 App. Div. 98; Vogeder v. Becker, 38 App. Div. 380; Stewart v. M. S. Ry. Co., 72 App.

<p>Constitutional Law — Judgment for Alimony Constitutes Property of Wife of which she Cannot Be Deprived without Due Process of Law—L. 1900, Ch. 742, in so far as it Affects Prior Judgments for Alimony, Unconstitutional. A final judgment granting a divorce and directing the defendant to pay a certain sum per year for the plaintiff’s support and the education and maintenance of her children creates and vests substantial rights which constitute property of the plaintiff, of which she cannot be deprived without due process of law (Const, art. I, § 6); and a subsequent statute (L. 1900, ch. 742), permitting the court, upon the application of either party to an action, at any time after final judgment, whether heretofore or hereafter rendered, to annul, vary or modify a direction of such judgment requiring the defendant to provide for the education and maintenance of the children of the marriage and for the support of the plaintiff, is unconstitutional in so far as it attempts to confer a power upon the court to annul, or vary, valid and final judgments rendered before the enactment of the statute.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Interest was properly allowed upon the plaintiffs’ recovery from the time the claim sued upon was presented to the comptroller for settlement and adjustment up to the time of the entry of the judgment.

The nature of the • action and the facts, so far as material, are stated in the opinion. The letters constitute a contract. The second letter is the offer and the fifth the acceptance.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff had no standing in the Supreme Court because collusion or legal fraud were practiced in the Surrogate’s Court in obtaining letters of administration, and thus inducing that court to take jurisdiction of the estate of the decedent.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendants having acted in good faith, with the utmost care, without personal advantage, having no object except to increase the legitimate business of their company, are not liable in this action. (Symmes v. U. T. Co., 60 Fed.

<p>Husband and Wife — Evidence — Decree of Divorce Obtained by Wife in Another State, upon Grounds Hot Recognized in this State, Competent Evidence against her in Action for Dower in Husband’s Property Acquired Subsequent to Divorce. In an action of dower brought by one claiming to be the widow of decedent an exemplified copy of a decree of divorce, obtained by the plaintiff in Massachusetts upon the ground of extreme cruelty, in an action in which decedent was personally served with the summons, hut did not, either personally or by attorney, appear therein, or submit himself to the jurisdiction of the Massachusetts court, is competent evidence tending to defeat her claim that she is the widow of the decedent and entitled to dower in the real estate acquired by him after the decree; since the plaintiff cannot be heard to impeach a decree or judgment which she, herself, has procured to be entered in her own favor.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The violation by the defendant of the'Factory Law in employing the plaintiff, without any other evidence of negligence, is insufficient to support a verdict or a judgment for the plaintiff. (Knisley v. Pratt, 148 N. Y. 372; Graves v. Brewer, 4 App. Div. 327; Higgins Carpet Co. v. O'Keefe, 79 Fed. Rep. 900; Thompson v. Carey Mfg. Co., 62 App. Div. 279; Monzi v. Friedline, 33 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 20, 1902, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the defendant to pay to the relator the salary of chief of police of the city of New York for the months of March, April and May, 1901.</p>

peremptory writ of mandamus to compel the defendant to pay to the relator the salary of police commissioner of the city of New York for the period from February 22, 1901, to March 31, 1901.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 2, 1902, affirming a judgment in favor of respondents herein entered upon the'report of a referee.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 7, 1901, which reversed a judgment in favor of plaintiffs entered upon a verdict and an order denying a motion for a new trial and granted a new trial.</p>

Cross-appeals, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 28, 1902, which affirmed an interlocutory judgment of Special Term sustaining in part and overruling in part a demurrer to the complaint. The following are the questions certified: “ First. Do counts I to XIII, both inclusive, of the amended complaint state facts sufficient to constitute a cause of action ? “ Second.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 14, 1902, which reversed 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 granted a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 1, 1901, upon an order reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granting a new trial.</p>

<p>Review op Assessment—Unanimous Affirmance—Finding of Fact. The restriction imposed by the Constitution upon the review of a unanimous decision of the Appellate Division that there is evidence supporting a finding of fact applies to an order of affirmance in a statutory proceeding to review an assessment in which a trial de novo has been had at Special Term, upon new evidence, as to the value of the relator’s property, resulting, in an affirmance of the assessment and a dismissal of the writ of certiorari, and the effect of such an order is a determination that the finding of fact as expressed or necessarily implied in the decision of the Special Term is supported by evidence, and, therefore, is not the subject of review in the Court of Appeals.</p>