Volume 184 — New York Reports

The plaintiffs, by the institution of this action, have sought to restrain the defendant from continuing a nuisance, created through the maintenance and operation of a plant for the supply of electric light and power, whereby their property in neighboring dwelling houses has been injuriously affected. They, further, demanded judgment for damages already sustained. The property was in the occupancy of a tenant, holding under a lease by the plaintiffs.

The facts, so far as material, are stated in the opinion-. Prohibition will lie to restrain proceedings under indictments found upon evidence extorted from the person accused in violation of the rights secured to him by the Constitution. (People v. Rutherford, 47 App. Div. 209; People ex rel. Sandman v. Tuthill, 79 App. Div. 24 ; People ex rel. Toy v. Maher, 71 Hun, 82; People ex rel. Hess v. Inman, 74 Hun, 130; People ex rel. Higgins v. McAdam, 22 Hun, 559; People ex rel.

The nature of the action and the facts, so far as material, are stated in the opinion. The nonsuit was error, and there are no grounds on which it can be sustained. (Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129; Lynch v. Met. El. R. R. Co., 90 N. Y. 77; Cohen v. D. D., E. B. & B. R. R. Co., 69 N. Y. 170; Peck v. N. Y. C. & H. R. R. R. Co., 70 N. Y. 587; Hoffman v. N. Y. C. & H. R. R. R. Co., 87 N. Y. 25; Kastner v. L. I. R. R. Co., 76 App.

This proceeding is based upon eleven charges of misconduct preferred by Frank D. Bailey, of Syracuse. The appellant interposed an answer and the matter was referred to the Hon. Charles A. Hawley, of Seneca Falls, to take the proofs therein and report the same to the Appellate Division, together with his opinion thereon.

<p>1. Mtjrder—Erroneous Instructions as to Killing After the Commission of a Burglary Had Ceased—Penal Code, § 183.</p> <p>Where it appears upon the trial of a defendant indicted for murder in in the first degree for killing a police officer, who was attempting to arrest him, that defendant, while attempting to commit a burglary was discovered by a private watchman; that, abandoning the property which he had stolen, he ran from the building pursued by the watchman until they were seen by a policeman who took up the pursuit, calling upon defendant to stop or he would shoot; that after following him for about three hundred feet the policeman had so gained upon the defendant that he was but a few feet distant from him when the latter suddenly drew his revolver and shot the policeman, producing a wound from which he died, it is reversible error to instruct the jury that in case the defendant did not intend to kill the policeman and that the killing was without premeditation, yet if they found that he fired the shot at the policeman after he had attempted to burglarize or had burglarized the premises described in the indictment and was attempting to escape therefrom, then the verdict ought to be for murder in the first degree; since, at the time of the killing the defendant had- ceased to be engaged in the commission of a burglary. (Penal Code, § 183.)</p> <p>3. Murder as in the Commission of a Felony—Penal Code, § 318, Sued. 5.</p> <p>Nor is a conviction for murder in the first degree, as in the commission of a felony, warranted by the fact that at the time of the killing the defendant was engaged in the commission of another felony, i. e., an assault upon an officer to prevent or resist the apprehension of himself (Penal Code, § 318, subd. 5); since the assault being the gist of the offense becomes a constituent part of and is merged in the homicide, and cannot be regarded as a separate and independent felony, which although committed “ without a design to effect death,” would bring the case within the statute.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant is liable for aiding, abetting and assisting in the creation of a nuisance and in its maintenance for nearly a month. (Campbell v. U. S. F. Co., 73 Hun, 576; Simmons v. Everson, 124 N. Y. 319 ; Morris v. Barrisford, 9 Misc. Rep. 14; Campbell v. Seaman, 63 N. Y. 568 ; Stevens v. Pucci, 32 Misc. Rep. 464; Booth v. Rome Co., 140 N. Y. 267; Hill v. Schneider, 13 App.

By accepting the contract ticket and failing to declare the excess value of her luggage and paying freight thereon the plaintiff precluded herself from claiming more than $100. (Steers v. L., N. Y. & P. S. S. Co., 57 N. Y. 1; Wheeler v. O. S. N. Co., 72 Hun, 5 ; Belger v. Dinsmore, 51 N. Y. 166.) The fact that the agreement does not specifically refer to losses occasioned by the negligence of the carrier does not deprive the defendant of the benefit of the valuation clause.

The nature of the action and the facts, so far as material, are stated in the opinion. Upon the plaintiff’s own evidence, it does not appear either directly or by inference that he exercised any care or caution whatever.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 9, 1904, affirming a judgment in favor of defendant entered upon a dismissal of the complaint 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>The defendant was negligent in not keeping the crossing safe. (Allen v. B., R. & P. R. R. Co., 151 N. Y. 434; McKinney v. N. Y. C. & H. R. R. R. Co., 66 App. Div. 207, 209; Gale v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 594; Lowell v. C. V. R. R. Co., 15 App. Div. 218; Worster v. F. S. S. R. R. Co., 50 N. Y. 203; Casper v. D. D. R. R. Co., 23 App. Div. 458 ; Cuddeback v. Jewett, 20 Hun, 187; Payne v. T. & B. R. R. Co., 83 N. Y. 572; Wasmer v. D., L. & W. R. R. Co., 80 N. Y. 212.)</p> <p>The nonsuit was proper. The condition complained of was not such as to constitute negligence on the part of the defendant. (Belts v. City of Yonkers, 148 N. Y. 67; Bateman v. N. Y. C. & H. R. R. R. Co., 47 Hun, 429.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Under the provisions of the bill of lading contract, under which the goods were received and shipped, the carriers’ liability, as such, ceased upon the arrival of the ship and the discharge of the cargo, package by package, immediately the goods left the ship’s deck or tackle. (Constable v. Nat.

<p>1. Easements — Although Reserved, Pass With Conveyance of Freehold. • Basements of light, air and access, appurtenant to real property abutting on a public street or highway, are inseparable from the dominant estate, and upon a conveyance of the latter such easements pass to the grantee, notwithstanding the grantor’s attempted reservation of the same or of any rights of action for the invasion or destruction thereof.</p> <p>2. Effect of Reservation Is to Make Grantee the Trustee of Moneys Received for Subsequent Conveyance. Although such reservation in a deed is ineffectual to create a trust in such easements, it does create a resulting trust by virtue of which the grantee becomes a trustee for his grantor as to all moneys received or judgments recovered for the invasion or destruction of such easements.</p> <p>3. Grantee Alone Gan Sue for Damages or Execute Release. The owner of premises as to which such easements have been destroyed is the only person who can sue for the damages thus caused or who can execute a release in satisfaction thereof, and, therefore, a person or corporation invading or destroying such easements has the right to obtain a release from the owner of the dominant estate who alone is legally entitled to the Resulting damages.</p> <p>4. Action by Grantor to Set Aside Subsequent Conveyance and to Recover Damages for Invasion or Destruction of Basements. Where the abutting owner of property injuriously affected by the operation and maintenance of an elevated railroad brings the usual action for damages and, during its pendency, conveys the property, reserving, however, his easements and the right of action therefor, and subsequently the railroad company, with knowledge of such reservation, obtains from his grantee a release of the easements and of any right of action relating thereto, for a stipulated sum, and thereafter the former owner brings an action against the company and his grantee, demanding that the latter be declared a trustee for his benefit and that the release be declared void and set aside, a judgment reversing a decision of the trial court dismissing the complaint as to the company, apparently based upon the theory that the reservation in plaintiff’s deed was effectual to create an equitable lieu upon the easements which was binding upon the company, is erroneous, since there can be no lien upon such easements, separate and apart from the freehold to which they are appurtenant; the reservation created an equitable lien in favor of plaintiff as against his grantee, upon the moneys received as a consideration for the release and nothing more, and in the absence of any allegation or proof of fraud or insufficiency of consideration, the amount received is conclusive as between them.</p>

dismissal of the complaint by the court at a Trial Term and granting a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. The mere fact that the hawser broke under the circumstances disclosed by the evidence creates no' presumption of negligence.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 29, .1905, which modified and affirmed as modified an interlocutory judgment of Special Term directing a partition and sale of real property. The following questions were certified: “First. Margaret Clifford, a naturalized citizen or a resident alien, on April 12th, 1873, acquired the real property in suit by purchase.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 23, 1904, 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 November 18, 1904, 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 third judicial department, entered November 29,1904, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury and granting a new trial.</p>

Appeal from a judgment of - the Appellate Division of the Supreme Court in the fourth judicial department, entered October 26, 1904, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at an Equity-Term,

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 28, 1904, which reversed an order made at a Trial Term denying a motion for a new trial after a verdict in favor of plaintiff and granted a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered December 17,1904, affirming a judgment in favor of plaintiffs entered upon a decision of the court at a Trial Term without a jury.</p>

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 19, 1904, modifying and affirming as modified a judgment in favor of plaintiff entered upon the report of a referee.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 8, 1902, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial.</p>

Appeal in' each of the above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 2,1904, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 24, 1905, 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>

Appeal. The fact that certain points made upon the argument of a case in the Court of Appeals are not discussed in the opinion of the court upon the decision thereof does not warrant the conclusion that they were overlooked.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 30, 1905, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the defendant to permit an inspection of its stock book by the relator.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 22, 1904, which reversed an order of the court at a Trial Term denying a motion for a new trial after a verdict in favor of plaintiff, and granted such motion upon questions of law only, the facts having been examined and no error found therein.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 22,1905, 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 third judicial department, entered March 18, 1905, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by 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 March 18, 1904, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December T, 1904, which reversed 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 first judicial department, entered March 17, 1905, which reversed a judgment in favor of defendant entered upon a decision of the court at a Trial Term without a jury 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 fourth judicial department, entered September 27, 1904, which reversed an order of the court at a Trial Term denying a motion for a new trial after a verdict had been rendered in favor of plaintiff.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 27, 1905, affirming a.judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. '</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 3, 1905, affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered August 31, 1905, reversing a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term.</p>

This is an action of ejectment commenced in July, 1901, to recover the possession of certain premises known as Nos. 126, 728 and 730 Broadway in the city of New York. Several defenses were pleaded in the answer, but no evidence was given to establish them as the complaint was dismissed at the close of the plaintiff's case.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 3, 1905, 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>

first judicial department, entered February 18,1905, which reversed a-judgment in favor of defendant entered upon a verdict and an order denying a motion for a new trial and granted a new trial.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first -judicial department, entered November-23, 1905, affirming a final judgment of Special Term in an action for the construction of the will of George Parbury Pollen, deceased, and for an accounting.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 2, 1905, 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>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 21, 1905, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court and an order denying a motion for a new trial.</p>