Volume 174 — New York Reports

This action was brought to recover damages on account of the death of the plaintiff’s intestate caused, as alleged, by the negligence of the defendant. The decedent was a car inspector, and the plaintiff claimed that he lost his life because the defendant failed to make, promulgate and enforce reasonable and proper rules for the protection of its car inspectors while they were engaged in the discharge of their duties at its Syracuse station.

The facts, so far as material, are stated in the opinion. The appellant has a lien under section 66 of the Code of Civil Procedure. (Matter of Regan, 167 N. Y. 338.) The agreement was not champertous. (Fowler v. Cullen, 102 N. Y. 395 ; Zogbaum v. Parker, 55 N. Y. 120 ; Benedict v. Stuart, 23 Barb. 420 ; Lathrop v. Amherst, 9 Metc. 492 ; Fonda v. Parker, 11 M. & W. 675 ; Wetmore v. Hegeman, 12 Wkly. Dig. 403.) The agreement is not unconscionable.

Appeal, by permission, from an order of the Appellate Division 'of the Supreme Court in the first judicial department, entered November 10, 1902, which reversed an order of Special Term confirming the report of commissioners of estimate and assessment herein.

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to permit the plaintiff himself to testify that the signatures attached to the alleged notes were in the genuine handwriting of his deceased mother, Hester Hoag, the testatrix of the defendants. (Simmons v. Havens, 101 N. Y. 427 ; Richardson v. Emmett, 170 N. Y. 412 ; Matter of Weeks, 23 App. Div. 151 ; Hobart v. Verrault, 74 App.

<p>1. New York, City of — When Assessment for Local Improvement Becomes a Lien—Covenant against Incumbrances. The Greater New York charter (L. 1897, ch. 378, §§ 159, 986, 1017) authorizes partial confirmation of assessments for local improvements for the purpose of limiting appeals and settling rightsjjto tanto, and a full confirmation for the purpose of establishing the lien of the assessment when perfected by entry of record in the offices designated, and the assessment becomes a lien upon the property affected from the time of such entry; a covenant in a deed, therefore, of property in the city of New York, in the borough of The Bronx, that the premises conveyed were “then free from incumbrances,” is not broken by the fact that at the date of the delivery of the deed the premises were subject to an assessment for a local improvement which had not been fully confirmed and an entry thereof made in the proper office.</p> <p>2. Costs—Right to, May Be Waived by the Parties to the Submission of a Controversy—Code Civ. Pro. § 1279. While under section 1279 of the Code of Civil Procedure, providing for the submission of a controversy, the award of costs is discretionary with the court, either party may waive his right to have the court exercise its discretion in his favor, and when it is stipulated that the judgment rendered shall be “without costs” a judgment with costs should be modified by striking them, out.</p>

The facts, so far as material, are stated in the opinion. If the defendant, at the time he sold this liquor to Lee Moore, relied upon the statement made to him by the father of this alleged minor, that he was over eighteen years of age, and if the defendant believed that statement, he should have been acquitted, and the court erred in refusing to so charge the jury.

The facts, so far as material, are stated in the opinion. The position of male principal in this evening school was abolished as an inevitable incident of the determination by the board of education that the sexes should be separated and that the women pupils should be in charge of women instead of men. This determination, as a matter of policy, was clearly and plainly within the discretionary power of the board of education.

In her petition for the writ, the relator alleged, among other things, that on the 1st of February, 1898, she “ was appointed as a teacher of the Sixth Grammar Grade Mixed in Public School No. 89 of the City of Brooklyn under a permanent appointment,” and that at the timé she held a certificate entitling her “ to a permanent appointment as teacher of any grammar grade in the said city;” that on the 30th of June, 1900, she was transferred to -Public School No. 90, and…

<p>Appeal — Order Reversing-Judgment and Granting New Trial, ‘ ‘ the Pacts Having Been Examined and No Error Pound Therein, ” Review able by Court op Appeals. An order of the Appellate Division that “ the order and judgment so appealed from be and the same is hereby reversed and a new trial ordered, with costs to the appellant to abide the event, upon questions of law only, the facts having been examined and no error found therein,” means that, although the Appellate Division reached the conclusion after examining all the evidence that the jury were justified in accepting as true in all instances of conflict in testimony that which was most favorable to the plaintiff, yet it could not permit the judgment to stand because that most favorable view of the testimony fell short of supporting the judgment; such order is, therefore, appealable and the Court of Appeals may review any of the questions of law that were before the Appellate Division.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The fraudulent representations alleged to have been made by the defendant’s cashier were not the representations of the bank, nor can the bank be held liable by reason of such statements. (Kerr on Fraud & Mistake, 116 ; Story on Agency, § 115 ; Morse on Banks [3d ed.], 351, § 167 ; Mapes v. S. Nat. Bank, 80 Penn.

<p>1. Appeal— Question of Fact. A finding as to the law of a foreign state upon a given subject is a finding of fact, and if unanimously approved by the Appellate Division is conclusive upon the Co}urt of Appeals.</p> <p>2. Bills, Notes and Checks—Indorsement. The holder of a promissory note who so deals with the maker that he becomes discharged from all liability thereon as against subsequent indorsers, cannot enforce the contract of indorsement.</p> <p>3. When Acts of the Holder Depriving Indorser of Remedy against the Maker Disoharge Indorser. A promissory note executed in another- state but indorsed in this state, cannot be enforced against the indorser by the holder where he has recovered judgment thereon against the.maker in the foreign state and without the consent of the indorser has sold the judgment and transferred it to a third party for the benefit of the maker, and caused or permitted an order to be entered in the action declaring that the transferee “be subrogated to all the plaintiff’s rights, claims and demands in and to the judgment therein against the defendant,” although at the time of the transfer the holder expressly reserved all of his rights and claims against the indorser, to which reservation both the transferee and the defendant assented, where the effect of the transaction was by the law of the foreign state to relieve the maker from all liability on the note; the fact that the holder reserved his" rights does not entitle him to enforce the note, against the indorser, since by his own act he deprived the latter of his remedy against the maker, and by the laws of this state, by which the contract of indorsement is governed, the indorser is discharged from all liability on the note.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 24, 1903, which reversed an order of Special Term denying a motion to vacate or modify an order appointing a receiver of the. property of the defendant and modified the order appointing such receiver. The facts, so far as material, and the question certified are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 5, 1903, which affirmed an interlocutory judgment of Special Term entered upon a decision overruling a demurrer to the complaint. The nature of the action, the facts, so far as material, and the question certified are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 28,1902, which affirmed an order of Special Term denying a motion to vacate an order for the examination of the appellant herein in supplementary proceedings.

The action was brought against the defendant to recover damages for the death of the plaintiff’s intestate; which is alleged to have been caused by the negligent construction of a toboggan slide.

<p>1. Sale — .Executory Contract — When it Cannot Be Reformed at Instance of Party Thereto. Where an executory contract of sale in writing provided that the vendor should furnish all the goods of a certain kind needed by the vendee for a certain year, on terms and at prices therein specified, and bound the vendee to deal exclusively in goods to be ordered under the contract and to enlarge and develop the market therefor so far as possible, and the vendor, after filling orders to an amount equal to that ordered by the vendee in the preceding year under a similar contract, refused to fill further orders which would bring the aggregate up to twice the amount ordered before, the vendor is not entitled, in an action brought by the vendee to recover damages for the vendor’s refusal to supply goods, to have the contract reformed so as to call for only the usual amount of goods and not materially exceeding the quantity delivered in any one year before under a similar contract, upon the ground that there was a mutual mistake in framing the contract and that it was the intention to limit the quantity of goods to be delivered to an amount such as had been called for in previous years of similar dealing between the parties, since the contract bound the vendee to deal exclusively in goods to be ordered from the vendor and to. enlarge and develop the market therefor so far as possible, and hence the contract was left open and indefinite as to the quantity to be ordered thereunder.</p> <p>2. Evidence — Whether a Certain Quantity of Goods Is Needed, Question of Fact. The question whether the orders were for goods required for the needs of the vendee’s business calls for a fact and not for an opinion and cannot be excluded upon the ground that it calls for the opinion of a witness, especially where there is no defense that the goods were not required for the needs of the vendee’s business.</p> <p>3. Facts Tending to Show Unreasonable and Unfair Use of Contract Cannot Be Proved Unless such Facts are Pleaded as a Defense. Although the vendee did not have the right to order goods under the contract to any amount, and was bound to carry it out in a reasonable way under the obligation of good faith and fair dealing implied in every contract, the vendor cannot prove facts tending to show that the vendee did not act reasonably or in good faith, but used the contract for speculation, instead of regular and ordinary business purposes, unless such defense was pleaded, and where it was neither pleaded nor proved the judgment for damages obtained by the vendee must be affirmed.</p>

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. Defendant was guilty of negligence.

<p>1. Marriage, a Civil Contract Only and Subject to Be Vacated por Fraud. While marriage contracts are based upon considerations peculiar to themselves and public policy is concerned with the regulation of the family relation, nevertheless the law of this state considers marriage in no' other light than that of a civil contract, requiring for its validity that full and free consent which is the essence of all ordinary contracts; every misrepresentation of a material fact made with the intention to induce another to enter into an agreement and without which he would not have done so, justifies the court in vacating the agreement, and there is no valid reason for excepting the marriage contract from the general rule.</p> <p>2. Annulment upon the Ground that Consent Was Obtained by Material Misrepresentation op Fact. Where in an action for the annulment of a marriage it appears that the consent of the plaintiff to marry the defendant was obtained by a fraudulent representation and stratagem causing him to believe that he was the father of her child, and that but for the fraud he would not have consented to the marriage, such misrepresentation must be deemed of a material nature, and under subdivision 4, of section 1743, of the Code of Civil Procedure, providing that a marriage may be annulled when the consent of one of the parties is obtained by force, duress or fraud, the court may properly annul the marriage if it appears that the plaintiff has not, with full knowledge of the facts constituting the fraud, voluntarily cohabited with the defendant before the commencement of the action.</p>

The facts, so far as material, are stated in the opinion. ■ The capital stock of the relator may be used as the basis of computation of a franchise tax, although wholly invested in patent rights. (People ex rel. v. Campbell, 138 N. Y. 543 ; M. S. Bank v. City of Rochester, 37 N. Y. 365 ; People v. H. Ins. Co., 92 N. Y. 328 ; 134 U. S. 594 ; H. Ins. Co. v. New York, 134 U. S. 594 ; People v. A. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. If Iinrtz had a principal the principal cannot be reached in any form of action because the only obligation that exists is tho obligation created by the bond itself, and when an instrument is under seal the plaintiff cannot prove any principal other than the one stated in the instrument. (Farrar v. Lee, 10 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 29, 1902, which affirmed a judgment rendered at a Trial Term upon a verdict convicting the defendant of the crime of manslaughter in the first degree 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 December 20, 1901, affirming a judgment of Special Term in an action to foreclose certain mechanics’ liens.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 9, 1903, which reversed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the defendant to reinstate the petitioner in the position of principal of an evening high school in the borough of Brooklyn, and granted such writ.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 15, 1901, which affirmed a decree of the Richmond County Surrogate’s Court dismissing a petition to compel the respondent herein to account.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 13, 1902, which reversed a judgment in favor of plaintiff entered upon a verdict 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 February 4, 1902, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.</p>