Volume 188 — New York Reports

The facts, so far as material, are stated in the opinion. The action of the hoard of supervisors was in accordance with the statute law of the state. (L. 1896, ch. 908, § 3 ; People ex rel. N. S. Bernik v. Peck, 157 N. Y. 51 ; City of Rochester v. Coe, 25 App. Div. 300.) The course pursued by the hoard of supervisors was not only legal, but it was entirely just and equitable. (Matter of Jenkins, 47 App. Div. 404; City of Utica v. Bd. of Suprs., 109 App.

Appeal, by permission, from an order of tbe Appellate Division of the Supreme Court in tbe third judicial department, entered January 19, 1907, which reversed an order of Special Term denying a motion to strike out certain portions of a judgment of foreclosure and sale, entered in the above-entitled action, and granted such motion. The facts, so far as material, and the questions certified are stated in the opinion.

The facts, so far as material, are stated in the opinion. The refusal of Mr. Kaffenburgh to answer questions asked him as a witness, on the ground that the answers thereto might tend to incriminate him, did not constitute professional misconduct. (Matter of Cohen, 115 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The owner of upland bordering upon navigable waters has riparian rights, including the right to make, maintain and use a suitable wharf or pier for a means of access to the navigable part of such waters. (T. I. S. Co. v. Visger, 179 N. Y. 206; Rumsey v. N. Y. & N. E. R. R. Co., 133 N. Y. 79 ; Saunders v. N. Y. C. & H. R. R. R. Co., 144 N. Y. 76 ; People v. Mould, 37 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April' 6, 1906, which affirmed an order of the Appellate Term affirming an order of the Municipal Court of the city of New York made in summary proceedings, and awarding possession of the premises in suit to the plaintiffs.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The taxes were paid before the final order was granted, and for that reason the justice erred in including their non-payment as one of the grounds for granting the order. (Code Civ. Pro. § 2256 ; Witty v. Acton, 58 Hun, 552; Voorhees v. Burchard, 55 N. Y. 107 ; Bergen v. Urbahn, 83 N. Y. 50; Frear v. Sweet, 118 N. Y. 458; Brady v. Nolly, 151 N. Y. 258; Eastwood v. Retsof Co., 86 Hun, 95; Bixby v. Casino Co., 14 Misc. Rep. 346; Jarvis v. Briggs, 69 N. Y. 145.) ■ The appellant had the right to pay the taxes when it did and at any time before a warrant was issued. (Code Civ. Pro. § 2254 ; Matter of Flewwellin v. Lent, 91 App. Div. 430.)</p> <p>The decision of the Municipal Court that the order should be for dispossession on the ground of non-payment of rent and taxes was correct, notwithstanding the payment "by the tenant of the taxes pending the trial. (Simmons v. Pepe, 43 Misc. Rep. 661; Butler v. F. T. Co., 186 N. Y. 486; Wisner v. Ocumpaugh, 71 N. Y. 113; Garner v. Hannah, 6 Duer, 262; Jackson v. Stiles, 3 Wend. 429 ; Giles v. Austin, 62 N. Y. 486 ; Storer v. Chasse, 9 Misc. Rep. 45; Platter of Flewwellin v. Lent, 91 App. Div. 430 ; Eaton v. Wells, 82 N. Y. 576 ; Jarvis v. Briggs, 69 N. Y. 145.)</p>

<p>Appeal from a judgment of the Supreme Court, rendered April 11, 1905, at a Trial Term for the county of Tompkins upon a verdict convicting the defendant of the crime of murder in the first degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Mubdeb—Sufficiency of Evidence—Appeal fob Clemency Cannot Be Considebed by the Coubt of Appeals—Application Must Be Made to the Govebnob.</p> <p>Where, upon the trial of a defendant indicted for murder, there is evidence sufficient to sustain a verdict convicting the defendant of murder in the first degree, the judgment of conviction must be affirmed; the fact that there are circumstances in the case which tend to lessen the moral guilt of the defendant and should relieve him from suffering the extreme penalty of the law, cannot be taken into consideration by the Court of Appeals; such facts and circumstances must be submitted, on an appeal for clemency, to the governor of the state, to whose judgment, under the Constitution and the law, the whole subject is confided.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The verdict of the jury for the plaintiff and the order of reversal of the Appellate Division has established all disputed facts in plaintiff’s favor.

Appeal in each of the above-entitled proceedings from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 12, 1906, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus directing the secretary of state to transmit to the county clerk of each county, and to the board of elections of the city of New York, election notices as provided by section 5 of the Election Law, and that he…

Motion to affirm without argument a judgment of the Supreme Court at a Trial Term, criminal branch, in the county of New York, rendered April 9, 1906, convicting the defendant of the crime of murder in the first degree. The motion was made pursuant to the provisions of sections 536 and 539 of the Code of Criminal Procedure.

1906, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. The nature of the action and tlm facts, so far as material, are stated in the opinion. The plaintiff and members of ‘his gang were engaged in the construction of the trench at the time of the accident. Therefore the trench was not a place to work furnished by the defendant, and the complaint should have been dismissed.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered IVIar.ch 16, 1906, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p> <p>Upon the trial of this action evidence was given tending to show that the plaintiff, while a passenger on a train of the defendant at Alamosa, Colorado, met with an accident caused wholly by its negligence. Whether she was injured internally was sharply contested. During the two nights immediately following the accident she assisted in the performance of a theatrical company, of which she was a member, acting a juvenile part, which required her '“to dance quite a good deal.” At the close of the performance on the second night, according to her testimony, she fell upon the stage, and after that could work no more for many months. The jury found a substantial verdict in her favor, and the judgment entered thereon was affirmed by the Appellate Division, two of the justices dissenting. The defendant appealed to this court.</p> <p>The plaintiff waived her privilege under sections 834 and 836 of the Code of Civil Procedure in procuring Dr. Hanson’s deposition, and, therefore, his evidence was competent. “ The patient cannot use this privilege both as a sword and a shield.” (McKinney v. G. S, etc., R. R. Co., 104 N. Y. 352; Morris v. N. Y., O. & W. R. Co., 148 N. Y. 88; Alberti v. N. Y., L. E. & W. R. R. Co., 118 N. Y. 78; Matter of Coleman, 111 N. Y. 77; Powers v. M. S. Ry. Co., 105 App. Div. 358; Cohen v. C. L. Ins. Co., 9 J. & S. 296; Rosseau v. Bleau, 131 N. Y. 107; Marx v. M. S. Ry. Co., 56 Hun, 575; People v. Ballard, 134 N. Y. 303.)</p> <p>The respondent did not waive the privilege accorded to her by section 834 of the Code of Civil Procedure. (Code Civ. Pro. § 836; Cudlip v. N. Y. E. J. Pub. Co., 180 N. Y. 85.)</p>

The facts, so far as material, are stated in the opinion. The attempted grant of the franchise by the American Electric Manufacturing Company -in 1888 to an individual was illegal and invalid and no title passed thereby, hence the respondent, which claims under and through it, is not an authorized company and has no lawful power to operate electrical conductors in the streets, avenues and highways of the city of Hew York.

The facts, so far as material, are stated in the opinion. The petition alleges all jurisdictional facts, and there being no controverted questions of fact, an order appointing commissioners should have been granted. (Radcliff v. Mayor of Brooklyn, 4 N. Y. 195; Story v. N. Y. El. R. R. Co., 90 N. Y. 122; Matter of Stack v. Port Chester, 50 Hun, 385; Matter of Greer, 39 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 22, 1906, in favor of defendant, upon the submission of a controversy under section 1279 of the Code of Civil Procedure.</p> <p>The nature- of the controversy and the facts, so far as material, are stated in the opinion.</p>

Cutting, father of the defendant, Robert L. Cutting. The facts, so far as material, are stated in the opinion. The agreement between plantiffs and defendant Cutting is champertous and, therefore, void and cannot be enforced. ' (Weeks on Attorneys [2d ed.], 186; Irwin v. Currie, 171 N. Y. 409 ; Matter of Speranza, 186 N. Y. 280; Stedwell v. Hartman, 74 App. Div. 126; Begly v. Weddigen, 86 App .

<p>Appeal from a judgment and order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 8, 1906, which affirmed a judgment of the Monroe County Court sustaining a demurrer to an indictment charging the defendant with the crime of selling and having in his possession with intent to sell printed matter of an indecent character.</p> <p>The facts, so far as material, are stated in the opinions.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 23, 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 for the death of plaintiff’s intestate alleged to have been caused by defendant’s negligence.</p>

dejiartment, entered March 10,1906, 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 death of plaintiff’s intestate alleged to have been caused by the defendant’s negligence.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 2, 1906, which reversed a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granted a new trial in an action to recover for the death of,plain tiff’s intestate, alleged to have been caused by defendant’s negligence.</p>

This action was brought to recover for legal services alleged to have been rendered to the defendants by the plaintiff’s testator.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 28, 1906, affirming 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 in an action to recover for personal injuries alleged to have been sustained through defendant’s negligence in filling a prescription.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 9, 1906, which reversed a decree of the New York County Surrogate’s Court judicially settling the accounts of the executors herein and directing distribution of the residuary estate.</p>

<p>Beal Property — Deed — Easement op Way. Where premises situated on a certain opened street are described in a conveyance thereof as being part of a certain lot on a certain map, which map shows the lot as bounded by the street in question, there is a sufficient recognition of the map to invest the purchaser with an easement of way through the street as shown, even though no street is mentioned in the conveyance.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered. October 20, 1906, which affirmed an order of Special Term denying a motion to transfer the aboverentitled action from the Trial Term to the Special Term calendar. The following questions were certified : “I. Whether, on the'facts-shown by the record herein, the cause of action is one maintainable in equity or at law. “ II.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 25, 1907, which reversed a decree of the New York County Surrogate’s Court granting the above-entitled petition and dismissed the proceeding.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 21, 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 an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 27, 1906, which reversed a judgment of Special Term vacating and setting aside certain assessments against property belonging to plaintiff and granted a new trial.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 9, 1906, 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 upon two indemnity bonds.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered-March 2, 1906, which reversed a judgment in favor of plaintiff entered upon a verdict and granted a new trial in an action to recover for an alleged breach of contract.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 9, 1906, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term and granting a new trial in an action to rescind and set aside a conveyance of an interest in certain real and personal property upon the ground of false representations having induced the conveyance.</p>

department, entered April 20, 1906, 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 caused by defendant’s negligence.

Appellate Division of the Supreme Court in the first judicial department, entered February 17, 1906, affirming a judgment in favor of plaintiff entered upon the report of a referee in an action to recover on promissory notes.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 25, 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 for personal injuries alleged to have been caused by defendant’s negligence.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 4,1906, 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 in an action to recover compensation for the use by defendant of the plaintiff’s elevated railroad structure as a.support for its police and fire telegraph wires.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 25, 1907, which're versed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the defendant to reinstate the relator in the position of clerk to the coroner of the borough of Eichmond and dismissed the proceeding.</p>

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 28, 1906, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an ■ action for a dissolution of a partnership and for an accounting.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 2, 1906, 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 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 second judicial department, entered June 15, 1906, which reversed a judgment in favor of plain•tiff 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 a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 18, 1906, affirming a judgment in favor of defendants entered upon a verdict in an action to recover a penalty for a violation of section 27 of the Agricultural Law in the sale of renovated butter.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 11, 1906, which reversed a judgment in favor of plaintiff entered upon, a verdict and aii order denying a motion for a hew trial and granted a new trial in an action to recover for personal injuries alleged to have been caused through defendant’s negligence.</p>