Volume 186 — New York Reports

The facts, so far as material, are stated in the opinion. The trial court, properly excluded the declarations that Miss Fitzpatrick made the note. (Austin v. Bartlett, 178 N.Y. 310; Connolly v. R. R. Co., 179 N. Y. 7; People v. Wolf, 183 N. Y. 464, 477; Kennedy v. People, 39 N. Y. 245; Reinhart v. People, 82 N. Y. 608; People v. Hawkins, 109 N. Y. 408; Greenfield v. People, 85 N. Y. 75.) Evidence of similar crimes was competent.

The complaint contains two counts, in the first of which the plaintiff alleged, in substance, that in August, 1889, the defendant, a domestic corporation duly authorized, issued to him its policy of insurance for $1,000, payable on his death to his wife, the policy being referred to as part of the complaint; that the plaintiff performed his part of the contract, but the defendant wrongfully declared said policy forfeited and refused to continue it in force; that the…

The nature of the action and the facts so, far as material, are stated in the opinion. The action of the board of aldermen in adopting the resolution or ordinance under which a portion of the Soutliside boulevard was set aside fqr tlie automobile speed trials did not create a nuisance per se, and the court erred in declining to submit any question but that of damages to the jury.

The facts, so far as material, are stated in the opinion. The present Code provisions have entirely uprooted the former loose provisions of the Revised Statutes. A convict cannot now be lawfully admitted to hail pending appeal until the judge has responsibly certified that there is reasonable doubt, and an application for such a certificate cannot be made except upon due notice to the-district attorney, and only after the service of formal specifications of error.

The facts, so far as material, are stated in the opinion. The duties imposed and the powers conferred by the act upon the state superintendent and his deputies are those of existing offices which the Constitution prescribes may be filled only by the vote of the electors or upon appointment by the authorities of the locality affected.

The facts, so far as material, are stated in the opinion. As the term of a class of eight directors expired on the day of the annual meeting, the election of eight person's to fill their places was required, unless the number of directors had theretofore been reduced.

The facts, so far as material, are stated in the opinion. By the terms of its resolution, the board of street opening and improvement directed that no award should be made for damage parcels 1, 1A, 1B, 10 and 10A, and that the assessment should be limited to the cost and expense of the acquisition of the damage parcels other than those just specified. The city is absolutely bound by this resolution, which is the fundamental basis of the proceeding.

The court erred in excluding the evidence offered by the defendant that there was a standard market value for the paving blocks described in the alleged contract. (Masterton v. Mayor, etc., 7 Hill, 61; N. Y. & M. G. P. Co. v. Howell, 7 N. Y. S. R. 494; Cahan v. Platt, 69 N. Y. 348 ; Canda v. Wick, 100 N. Y. 127 ; Bigelow v. Legg, 102 N. Y. 652; Windmuller v. Pope, 107 N. Y. 674; Todd v. Gamble, 148 N. Y. 382; Kelso v. Marshall, 24 App. Div. 128; Snell v. R. P. Co., 102 App.

<p>Appeal—Erroneous Reversal by Appellate Division op Judgment Directing Specific Performance — Code Civ. Pro. § 1338. The question whether a party is entitled to the specific performance of an executory contract relating to personal property, or should be confined to an action at law to recover damages for a breach, rests in the sound discretion of the court; and upon an appeal from a judgment directing specific performance entered upon the report of a referee, although the Appellate Division in the exercise of its discretion may reverse upon the facts, where its order of reversal is silent as to the grounds thereof it must be assumed to have been based upon questions of law only; and if no error of law appears and there is evidence to sustain the findings of fact by the referee, the judgment must be affirmed.</p>

Appeal in the first above-entitled proceeding from an order of the Appellate Division of the Supreme Court in the first judicial department, made October 26, 1906, which reversed an order of Special Term and sustained a decision of the board of elections of the city of New York in refusing to place the name of Edward J. Hannah on the official ballot as candidate for member of assembly for the eighteenth assembly district in the county of New York.

The nature of the action and the facts, so far as material, are stated in the opinion.

The relator alleged in his petition for the writ that on the 10th of December, 1905, a paper purporting to be a subpoena was served upon him, of which the following is a copy, viz.: „ “ State of New Yobk, ss. : “ In the Name of the People of the State of New York, to Meyer W. Livingston, No. 212 West 42nd Street. “ Having reason to suppose' an offense has been committed and for the purpose of investigating whether it has been committed, you are commanded to appear before me,…

The facts, so far as material, are stated in the opinion. The decision in McCord v. People (46 N. Y. 470) has legalized swindling in New York in all cases where the victim is in anywise in the wrong. People v. Livingstone, 47 App. Div. 283.) The doctrine of the McCord case is opposed to the weight of authority. (Clark & Marshall on Crimes [2d ed.], § 157; 2 Bish. New Crim. Law [8th ed.], §§ 467-469; McClain Crim. Law, § 682; May’s Crim. Law [3d ed.], §§ 25, 312; 12 Am. Eng.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 6, 1905, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury.</p> <p>This is an action of ejectment, which was tried by consent before the court without a jury. The trial judge found as facts that “ the defendant on or about January 1, 1903, without the consent of the plaintiff and without lawful authority, entered upon ” his premises in the city of Buffalo “ and stretched a wire over and across the same in the manner described in the complaint and maintained said wire upon said premises until January 10, 1903, when the defendant removed the said wire entirely from plaintiff’s said premises.”</p> <p>According to the allegations of the complaint the wire was strung “ about thirty feet from the surface of the ground on the easterly side and slanting to about twenty feet on the westerly side,” reached “across the entire width of said premises.”</p> <p>The trial judge further found that “ the plaintiff has been in possession of the premises described in the complaint at all times mentioned therein and since, except that portion thereof occupied by the defendant with said wire during the period specified.” The damages sustained by the plaintiff were assessed at six cents for “ the withholding by the defendant of that portion of the premises occupied by said wire for the period above specified.” There was neither allegation nor evidence that the wire was supported by any structure standing upon the plaintiff’s lot. The action was commenced on the 5th of January, 1903.</p> <p>The court found as a conclusion of law that the plaintiff, as the owner in fee of the premises in question, “ was entitled at the commencement of this action to have said wire removed from said premises, and is entitled to judgment against the defendant so declaring, and for six cents damages for withholding said property and for the costs of this action * * *”</p> <p>The judgment entered accordingly was affirmed on appeal to the Appellate Division by a divided vote, and the defendant now comes here.</p> <p>-fThe plaintiff is not entitled to maintain an action for ejectment. (Leprell v. Kleinschmidt, 112 N. Y. 364; Vrooman v. Jackson, 6 Hun, 326; Aiken v. Benedict, 39 Barb. 400 ; Jackson v. May, 16 Johns. 184; Child v. Chappell, 9 N. Y. 246; Mayor, etc., v. N. S. S. Ferry Co., 55 How. Pr. 154; Sasserath v. Metzgar, 30 Abb. [N. C.] 407; Rowan v. Kelsey, 18 Barb. 484; Anonymous, 3 Leon. 210; D' Acre's Case, 1 Lev. 58.) The plaintiff not only was not entitled to a judgment of ejectment, but failed to secure one. Therefore a judgment for costs upon the theory that he obtained such a judgment is erroneous. (Code Civ. Pro. § 3228, subd. 4; Lynk v. Weaver, 128 N. Y. 171; Dunster v. Kelly, 110 N. Y. 558.)</p> <p>The rights of the parties in this action are to be determined as of the time of the commencement of the action. (Wisner v. Ocumpaugh, 71 N. Y. 113 ; Caswell v. Kemp, 41 Hun, 434.) The plain tiff is entitled to costs. (Brooks v. Curtis, 50 N. Y. 639; Dunster v. Kelly, 110 N. Y. 558.) The -plaintiff was entitled to recover upon the facts stipulated and found. (Plummer v. G. E. Co., 20 App. Div. 527; Brooks v. Curtis, 50 N. Y. 639 ; Lynk v. Weaver, 128 N. Y. 171.) In an action to recover real property, or an interest in real property, costs follow as a matter of course regardless of whether a claim of title arises upon the pleadings. (Sherry v. Frecking, 4 Duer, 456 ; Aiken v. Benedict, 39 Barb. 400; Vrooman v. Jackson, 6 Hun, 326; Murphy v. Bolger, 60 Vt. 723; McCourt v. Eckstein, 22 Wis. 153; Rowan v. Kelsey, 18 Barb. 484.)</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 6, 1906, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the defendant to remove its railroad track from the side to the center of a certain street in the city of Geneva.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 27, 1905, modifying, and affirming as modified, a judgment in favor of respondents herein entered upon the report of a referee in an action for an accounting.</p>

judicial department, entered January 13, 1906, 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 in an action to' recover' for'the alleged negligent killing of plaintiff’s intestate.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 4, 1905, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in an action to recover for a loss of baggage through the alleged negligence of defendant.</p>

Motion to dismiss an appeal from a judgment of the Supreme Court, rendered April 30, 1906, at a Trial Term for the county of New York, upon a verdict convicting the defendant for the crime of murder in the first degree. The motion was made on the grounds that the appellant had failed to file the return or taken any steps to prosecute the appeal.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 26, 1906, which affirmed an order of Special Term granting a motion for an injunction pendente lite herein. The following questions were certified: “1. Whether or not the Supreme Court has jurisdiction to entertain this action; “2.

judicial department, entered April 20, 1906, which modified and affirmed as modified a decree of the Westchester County Surrogate’s Court settling the accounts of Martin J. Keogh as trustee under the will of David Jones, deceased.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 8, 1906, which affirmed a decree of the Albany. County Surrogate’s Court admitting to probate and construing the will of Sherman D. Pilsbnry, deceased.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered June 6, 1906, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the state comptroller to pay interest on moneys wrongfully collected as a transfer tax on the estate of George T. Hanford, • deceased.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court - in the second judicial department, entered March 24,1905, sustaining plaintiff’s exceptions to a dismissal of the complaint by the court at a Trial Term, which exceptions were ordered to be heard in the first instance by the Appellate Division, and granting a motion for a new trial in an action to recover for personal injuries alleged to have been received by the plaintiff through the negligence of his employer, the defendant.</p>

Motion upon argument for leave to withdraw appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 2, 1905, reversing a judgment in favor of defendants entered upon the report of.a referee, and granting a new trial in an action for the foreclosure of a mechanic’s lien. The motion was made upon the ground that it did not appear from the order of the Appellate Division that the reversal was upon questions of law only.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 30, 1904, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term, and granting a new trial in an action to restrain the alleged infringement of a trade mark.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 18, 1905, which reversed 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 and granted a new trial in an action to recover for personal injuries alleged to have been sustained through defendant’s negligence.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 22, 1905, 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 in an action to recover a sum alleged to be due for goods sold and delivered.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 27, 1905, which reversed 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, and granted a new trial in an action to recover for personal injuries alleged to have been received through defendant’s negligence.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 22, 1905, which reversed a judgment in favor of plaintiffs entered upon a verdict directed by the court and ap order denying a motion for a new trial and granted a new trial in an action to recover an undivided part of certain real property.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 15, 1905, 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 in an action to recover for personal injuries alleged to have been received through defendant’s negligence.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 8,1906, modifying and affirming as modified a judgment in favor of plaintiff entered upon the report of a referee in an action to recover a balance alleged to be due for services under a contract of employment.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 4, 1906, affirming a judgment in favor of plaintiffs entered upon the report of a referee in an action to restrain defendant from maintaining a certain dam at a height sufficient to set water back upon plaintiffs’ lands, and for damages.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 17,1904, which reversed a judgment in favor of defendants entered upon a decision of the court on trial at Special Term, and granted a new trial in an action to compel defendants to execute a deed of certain premises pursuant to the terms of an alleged contract.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 5, 1906, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new tidal in an action to recover for alleged extra work in the performance of a contract.</p>

Supreme Court in the first judicial department, entered January 29, 1906, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term without a jury in an action of ejectment to recover an undivided share of certain lands.

Ceoss-appeals from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered August 15, 1905, in' favor of plaintiff upon the submission of 'a controversy under section 1279 of the Code of Civil Procedure as to the construction of a certain written agreement.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 13, 1905, 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 in an action to recover for personal injuries alleged to have been received through defendant’s negligence.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 20, 1906, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in an action to recover upon a written contract.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 16, 1905, affirming a judgment in favor of plaintiff entered upon the report of a referee in an action to recover money alleged to have been overpaid and for breach of contract.</p>