Volume 180 — New York Reports

The nature of the action and the facts, so far as material, ■ are stated in the opinion. Plaintiff’s easements of light, air and access in and over One Hundred and Fifty-fifth street and Eighth avenue are property of which, under the Constitution, he cannot be deprived without compensation. (Story v. El. R. R. Co., 90 N. Y. 122; Lahr v. El. R. R. Co., 104 N. Y. 268; Kane v. El. R. R. Co., 125 N. Y. 164; Reining v. Ry.

This action was brought by the plaintiff, as state commissioner of excise of the' state of Hew York, against the principal and surety upon a bond, which had been given to the People of the state upon an application for a liquor tax certificate, to recover the penalty of the bond, by reason of a violation of its provisions.

The action is brought by the administratrix of Ellen Seville, deceased, to recover from. defendant hank the amount of certain deposits which with interest up to the time of the commencement of the action, were said to have amounted to upwards of $2,100.

The nature of the action and the facts, so far as material, are stated in the opinion. The acts of the commissioners and the city in attempting to construct the Perry street viaduct were illegal, unlawful and without power. (L. 1888, ch. 345; L. 1890, ch. 255 ; L. 1892, ch. 353; L. 1895, ch. 1039 ; Matter of Livingston, 121 N. Y. 94; L. V. Ry. Co. v. Adam, 176 N. Y. 420; People v. O'Brien, 111 N. Y. 1; People ex rel. v. Adams, 74 App.

The facts, as agreed upon by the parties, are substantially as follows: In January, 1898,- the respondent Fitzgerald was appointed justice of the Court of Special Sessions ’for the second division of the city of New York, pursuant to section 1401 of the charter of that city, to hold office “ until December 31st, 1903.” He qualified and held the office until the expiration of his term.

The nature of the action and the facts, so far as material, are stated in the opinion. The contract alleged as well as the contract proven was within the Statute of Frauds. (Hartwell v. Young, 67 Hun, 472; Billington v. Cahill, 51 Hun, 132; Oddy v. James, 48 N. Y. 685; Gordon v. Nieman, 118 N. Y. 152; Sherman v. Pedrick, 35 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 2, 1903, affirming a judgment in favor of defendant entered upon a dismissal of the complaint except as to an undisputed portion of the plaintiff’s claim by the court at a Trial Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>In construing the meaning and scope of an insurance policy, the rule is well established that the description must be construed to be inclusive rather than exclusive, with a view to granting the assured full indemnity. (Thompson v. P. Ins. Co., 136 U. S. 297; Rickerson v. H. F. Ins. Co., 149 N. Y. 307; Michael v. P. Nat. Ins. Co., 171 N. Y. 25; I. S. Co. v. Jewett, 169 N. Y. 13 ; 2 May on Ins. § 420; Hermann v. M. Ins. Co., 81 N. Y. 184; Castellane v. Preston, L. R. [11 Q. B. Div.] 380 ; Nostrand v. Knight, 123 N. Y. 614; Hoffman v. Æ. Ins. Co., 32 N. Y. 415.) The new structure and its contents of machinery, stock and materials are expressly covered by the privilege to make any additions to or alterations in the subject-matter of insurance. (Rickerson v. H. F. Ins. Co., 149 N. Y. 307; Rickerson v. G. A. Ins. Co., 6 App. Div. 550 ; Maisel v. F. Assn., 59 App. Div. 461; Home Mut. v. Roe, 71 Wis. 33 ; Cargill v. M. M. Ins. Co., 33 Minn. 90; Carpenter v. A. Ins. Co., 156 Penn. St. 37; Marsh v. C. M. Fire Ins. Co., 31 Ins. L. J. 537; Marsh v. N. H. F. Ins. Co., 31 Ins. L. J. 36; 2 Joyce on Ins. § 1739 ; Hoffman v. A. Ins. Co., 32 N. Y. 415 ; 1 Biddle on Ins. § 225 ; Cummings v. C. M. F. Ins. Co., 55 N. H. 457: Whitmell v. P. F. Ins. Co., 6 Lans. 166; Hooper v. H. R. F. Ins. Co., 15 Barb. 413; 17 N. Y. 424.)</p> <p>The “new” building being a separate and distinct structure and about 165 feet from the boiler house between which there was a mere conduit for water and other pipes, cannot be considered an “ addition ” nor the machinery therein “ attached ” to the buildings insured within the meaning of the policy. (A. Co. v. N. U. Ins. Co., 107 Fed. Rep. 662; P. S. R. Co. v. P. Ins. Co., 24 Fed. Rep. 773; Updike v. Skilman, 27 N. J. L. 131; Whitenach v. Noe, 11 N. J. Eq. 321.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The selection of a proper and sufficient rope for the purpose of raising the truss in question from a, sufficient supply furnished by the master was a detail of the work, for the proper performance of which the master was not responsible. (Cullen v. Norton, 126 N. Y. 1; Webber v. Piper, 109 N. Y. 496; Ludlow v. G. B. & M. Co., 11 App.

, The nature of the action and the facts, so far as material, are stated in the opinion/ The defendant’s houses are tenement houses as defined by the legislature, the courts and the lexicographers. (Musgrave v. Sherwood, 53 How. Pr. 311; Levy v. Schreyer, 27 App. Div. 282; Sonn v. Heilberg, 38 App. Div. 515; Ammerman v. Deane, 132 N. Y. 355; Boyd v. Kirwin, 15 N. Y. Supp. 721; White v. Collins, etc., Co., 82 App.

The nature of the action and the facts, so far as material, are stated in the opinion. Upon the review of a nonsuit the plaintiff is entitled to the most favorable inferences deducible from the evidence, and if there is any conflict of testimony it is to be resolved in his favor. If the inferences deducible from the facts are not certain and incontrovertible, they should be left to the jury.

The plaintiff, as the assignee of a mortgage, affecting a certain farm property through which the road of the Ulster & Delaware Railroad Company runs, sought, by this action in foreclosure, to compel the payment of - the principal sum due under the mortgage. The defense was made, in the railroad company’s answer, that the land occupied by its railroad ivas not subject to the mortgage lien; but had been released therefrom.

<p>Officers—Presumption of Regularity of Official Acts. Where a municipal charter provides for specific cases in which the vice-chairman of the council may perform the duties of the president, the presumption of the regularity of a warrant signed by the former and issued to the receiver of taxes will obtain, and his signature will be presumed to have been necessitated by one of the causes stated.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 14, 1904, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 27, 1904, upon an order reversing a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term and directing that the complaint be dismissed.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 14, 1904, 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>

Motion to amend remittitur so as to provide that the judgment appealed from and the interlocutory judgment entered upon the report of the referee be reversed, with costs to the appellants in all the courts to abide the event. (See 178 H. Y. 364.)

Motion to dismiss an appeal from a judgment -of the Court of General Sessions of the Peace in the county of New York, rendered May 20,1904, upon a verdict convicting the defendant of the crime of murder in the first degree; also application by defendant that counsel be assigned to appear for him in the Court of Appeals. The motion was made upon the ground of a failure to prosecute the appeal.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 21, 1903, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.</p>