Volume 189 — New York Reports

The nature of the action and the facts, so far as material, are stated in the opinion. The contention is untenable that the defendant was justified in'repudiating the contract, because a dispute had arisen between the parties as to the amount which the plaintiff was entitled to charge. (Graves v. White, 87 N. Y. 466 ; Dubois v. D. & H. C. Co., 4 Wend. 290 ; McIntosh v. Miner, 37 App. Div. 487 ; Bogardus v. N. Y. L. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. The shipping order and live stock contracts signed hy the plaintiff before the delivery and loading of the stock made the contract between the par-. ties and controlled. It was error on the part of the trial justice to admit evidence of prior negotiations and conversations.

<p>(1) . Murder—Sufficiency of Evidence.</p> <p>The evidence upon the trial of a defendant indicted for murder examined and held sufficient to sustain a verdict convicting the defendant of the crime of murder in the first degree.</p> <p>(2) . Venue—When Facts Insufficient to Sustain Motion for Change</p> <p>of Place of Trial of a Defendant Charged with the Crime of Murder.</p> <p>Where it appears from the record upon an appeal from an order denying the motion of a defendant, charged with a brutal and atrocious murder, for a change of venue, upon the ground that a fair and impartial trial could not be had in the county where the indictment was found, that only eighty-four talesmen were examined in obtaining a jury and that the defendant interposed only sixteen peremptory challenges, although under the statute he was entitled to thirty, it cannot be held that there was such a violent prejudice against the defendant, that the presumption of^innocence to which he was entitled had been converted into a universal presumption of guilt whereby it was impossible to obtain a fair and impartial jury before whom the defendant could be tried.</p> <p>(3) . Evidence—Admission in Evidence of Hammer Found Near Bodies of the Victims of the Homicide Not Erroneous.</p> <p>It is not reversible error to receive in evidence, upon the trial of such-defendant, a hammer found in a shed in which the bodies of the victims were found and in close proximity thereto, where it appears that the heads of the victims had been crushed in by some blunt instrument and the hammer was just such an instrument as might have been used to crush a human skull and, in addition, it was stained with human blood and had attached to it white human hairs, especially where, even if the hammer had not been received in evidence, the proof of the defendant’s guilt would still be overwhelming and conclusive.</p> <p>(4) . Rebuttal—When Evidence Tending to Contradict Testimony Favorable to Defendant Is Properly Received.</p> <p>Where there is evidence, upon the trial of such defendant, that the motive for his committing the crime, was his desire to obtain the real property of his victims without having the money to purchase it and by means of forged deeds purporting to convey the property to him, it is not reversible error to receive evidence that the defendant had permitted his invalid wife to become a patient at the county hospital as a public charge, offered in rebuttal of testimony, introduced by the defendant, tending to show that he had been in possession of means with which he might have purchased the property; even if this evidence were regarded as somewhat remote, that would simply affect its weight and not its competency.</p>

The facts, so far as material, are stated in the opinion. Extradition between states, territories and countries, subject to the jurisdiction of the United States, depends solely on the provisions of the Constitution of the United States and the acts of Congress. (People ex rel. Corkran v. Hyatt, 172 N. Y. 176.) This case does not come within any provision of law for extradition between Porto Pico and this state.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 12, 1906, which affirmed an order of Special Term overruling a demurrer to the return to a writ of habeas corpus and dismissing said writ.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from a judgment of the Supreme Court, rendered April 9, 1906, at a Trial Term for the county of New York, 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>

Appeal in the first above-entitled action from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 29, 1906, affirming a judgment in favor of plaintiff entered ripon the report of a referee.

■ Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July-23, 1906, which reversed an order of Special Term dismissing a writ of habeas corpus, reinstated said writ and directed the discharge of the relator, from custody. The facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. The relator, on the face of the papers, did not show himself entitled to a peremptory writ of mandamus, and the order appealed from is, therefore, erroneous. (L. 1901, ch. 466, § 1173; People ex rel. Lieberman v. Vandecarr, 81 App. Div. 128; 175 N. Y. 440; 199 U. S. 552; People v. Davis, 78 App.

The facts, so far as material, are stated in the opinion. The clear intent of the testator was that the trust should terminate at the death of the life beneficiary, Eliza L. Saunders, and that upon her death the principal of the bonds and the accrued interest thereon were to become the absolute property of Israel Corse, Jr. (Wolfe v. Van Nostrand, 2 N. Y. 436; Coon v. Coon, 38 Misc. Rep. 693; Miller v. McBlain, 98 N. Y. 517; McCormick v. McElligott, 127 Penn.

The nature of the controversy and the facts, so far as material, are stated in the opinion. The clause in Mrs. Carlisle’s lease that respondent should have a lien on all the effects and property brought into said hotel for any bills she might incur can have no bearing on this case. Mrs. Carlisle did not own this piano, and could make no transfer of it, nor give away rights in it, nor lien upon it that could affect the plaintiff. (6 Am. & Eng.

The nature of the controversy and the facts, so far as material, are stated in the opinion. Ho jurisdiction was ever acquired by the service of the summons by publication on Mary Rabinovitch because the order for the publication of the summons was jurisdictionally defective and did not comply with the provisions of the Code of Civil Procedure. (Code Civ.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department^ entered March 12, 1907, which reversed a judgment of the Ulster County Court rendered upon a verdict convicting the defendant of the crime of manslaughter in the first degree, and granted a new trial.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 31, 1907, which denied an application of the appellants herein for the appointment of commissioners to determine whether certain railroad tracks should be constructed and operated on Atlantic avenue in the borough of Brooklyn, city of Bew York.</p> <p>Atlantic avenue is a street one hundred'and twenty feet wide, running from the East river easterly to the present limits of the borough of Brooklyn, about seven miles easterly of the old city line. At the junction of Atlantic and Flat-bush avenues a steam railroad, owned by the Bassau Electric Bailroad Company but leased and operated by the Long Island Bailroad Company, commences and extending through Atlantic avenue continues on to Jamaica. Prior to 1897 the railroad was on the surface of the avenue, but after the passage of the Atlantic Avenue Improvement Act in that year (L. 1897, ch. 499), the tracks were placed partially in a subway and partially upon an elevated structure connected at three points by inclined planes resting on abutments of masonry, the existence of which makes it impossible to operate a surface road without encroaching upon the roadway of Atlantic avenue on either side of the abutment.</p> <p>The westerly part of the present right of way of the railroad companies originally belonged to the Brooklyn and Jamaica Railroad Company which was organized by special charter in 1832. (L. 1832, ch. 256.) After the road was built it was leased under authority conferred by chapter 94 of the Laws of 1836 to the Long Island Railroad Company, which had been incorporated in 1834. (L. 1834, cli. 178.) The right to alter, modify or repeal each of the three acts last named was expressly reserved by the legislature. The rights of the Brooklyn and Jamaica Railroad Company passed through foreclosure proceedings to the Atlantic Avenue Railroad Company, and from the latter to the Nassau Electric Railroad Company, one of the appellants. After the foreclosure a new lease was given to the Long Island Railroad Company. .</p> <p>Prior to 1850 Atlantic street was opened from Flatbush avenue to Bedford avenue and a portion of the right of way of the Brooklyn and Jamaica Railroad Company was taken for the purpose. From Franklin avenue eastward no portion of the railroad property or right of way was touched. The original right of way of the Brooklyn and Jamaica Railroad Company went over Atlantic street, and easterly of Flatbush avenue, over the present Atlantic avenue until it reached a point in the neighborhood of Franklin avenue, where it passed northward on a right of way about fifty feet wide, practically parallel to Atlantic avenue, extending to the city line as it formerly existed. This right of way, easterly of Franklin avenue and in front of the property of the respondents, was about one hundred feet north of the present northerly line of Atlantic avenue, which at this point was at one time known as Schuyler street. In 1855 a tripartite agreement was made between the two railroads first above mentioned and the city of Brooklyn, the first division of which relates to that part of Atlantic avenue which lies west of Franklin avenue, and the second, referred to in the opinion, to that part extending from the westerly line of Franklin avenue to the easterly line of the city as it existed at the date of the agreement. Atlantic avenue, as distinguished from Atlantic street and Schuyler street, was created by the tripartite agreement and an act of the legislature confirming the same, known as chapter 475 of the Laws of 1855.</p> <p>In 1897 the Atlantic Avenue Improvement Act was passed (L. 1897, cli. 499), under which the steam railroad tracks were removed from the surface of Atlantic avenue and placed partially underground and partially overhead. Under the act last named and an act passed in 1899 (L. 1899, cli. 497) the petitioning railroads claim the right to construct and operate a trolley line on the surface of Atlantic avenue where the steam railroad formerly stood. Such line has already been constructed except as to certain turnouts and sidings. This proceeding was commenced by an application made by the railroad companies to the Appellate Division for the appointment of commissioners to determine whether the necessary turnouts and sidings should be constructed to enable the trolley line to pass around the three structures by which the tracks laid beneath the surface of Atlantic avenue are carried over an inclined plane to the elevated road built above the surface thereof. The application was denied and the petitioning railroads appeal.</p> <p>The Brooklyn and Jamaica Bail way Company and the Long Island Bailroad Company as its lessee possessed the right to use the strip eighty feet wide which constituted their original right of way between Gnwanus lane (i. e., Flatbush avenue) and Classon avenue, together with the strip fifty feet wide constituting the continuation of such original right of way and running between the blocks from Classon avenue to the city line for the operation of either a surface, underground or elevated railroad structure or for" all of them, whenever such railroad should reasonably consider such use to be necessary, and to operate cars over any or all of such railroads by either steam or electricity. (People v. B., F. & C. I. R. R. Co., 89 N. Y. 75 ; Beekman v. B. & B. R. R. Co., 89 Hun, 14; Gallagher v. Keating, 27 Misc. Rep. 132 ; 57 App. Div. 626 ; 171 N. Y. 657; Bennett v. L. I. R. R. Co., 181 N. Y., 431.) There is no foundation for the contention of the respondents that the proposed, trolley surface railroad is a new railroad. On the contrary, it is an existing right in respect to the portion which is upon its right of way which is entered under the act of 1899 to ask for a franchise for so much of the three turnouts in question as shall he upon the highway. (L. 1899, ch. 497.) The proceedings for the opening of Atlantic avenue east of Franklin vested in the railroad the fee of the strip thirty feet wide, which was taken in those proceedings not for street purposes, but for railroad uses. (S. B. Ry. Co. v. Kirkover, 176 N. Y. 301; Matter of N. Y. C. R. R. Co., 15 Hun, 63; Rood v. N. Y. & E. R. R. Co., 18 Barb. 80; Conklin v. N. Y., O. & W. R. R. Co., 102 N. Y. 107; Bennett v. L. I. R. R. Co., 181 N. Y. 431; Larney v. N. Y. & H. R. R. Co., 62 App. Div. 311; Cassidy v. O. C. R. R. Co., 141 Mass. 174; Moss v. St. L. R. R. Co., 85 Mo. 86; C. & R. I. R. R. Co. v. Smith, 29 Am. & Eng. R. R. Cas. 558; Mott v. Eno, 181 N. Y. 346.) It was not the</p> <p>intention of the tripartite agreement and confirmatory act to limit the railroad use of the thirty-foot strip in any other respect than as to speed rate of trains. (Gillet v. Bank of America, 160 N. Y. 549; Wright v. Reusens, 133 N. Y. 298, 305 ; Smith v. Molleson, 148 N. Y. 241, 248 ; Wells v. Alexandre, 130 N. Y. 642, 645; Schoellkopf v. Coatsworth, 166 N. Y. 77, 84; Knowles v. Toone, 96 N. Y. 534; Langdon v. Mayor, etc., 93 N. Y. 129 ; Bluckman v. Striker, 142 N. Y. 555; Bennett v. L. I. R. R. Co., 181 N. Y. 431; De Witt v. E. T. R. Co., 134 N. Y. 495.) If there was any doubt as to whether the Atlantic Avenue Improvement Act interfered with the right of the petitioners to construct the proposed trolley line, it was removed by the act of 1899. (L. 1899, ch. 497.) The act of 1899 is not unconstitutional. (G. El. R. R. Co. v. Anderson, 3 Abb. [N. C.] 434; People v. L. I. R. R. Co., 9 Abb. [N. C.] 181; Matter of T. F. St. R. R. Co., 102 N. Y. 348; People ex rel. v. Darston, 119 N. Y. 569; Sweet v. City of Syracuse, 129 N. Y. 316; People ex rel. v. Rice, 135 N. Y. 484; Clark v. State, 142 N. Y. 101; Frees v. Ford, 6 N. Y. 176; People v. Crissey, 91 N. Y. 616; People v. Brooklyn, 89 N. Y. 75; People v. Budd, 117 N. Y. 13.)</p> <p>Neither the Brooklyn and Jamaica Eailroad Company nor the Atlantic Avenue Eailroad Company nor the Long Island Eailroad Company ever acquired any fee to thé thirty-foot right of way in Atlantic avenue, in front of the premises of the objectors. (L. 1853, ch. 220; L. 1897, ch. 499; L. 1855, ch. 457; Leffman v. L. I. R. R. Co., 47 Misc. Rep. 169.) The Brooklyn and Jamaica Eailroad Company had only the right to operate a single or double-tracked railroad. It never had and has not now the right to maintain either a four-tracked railroad or two double-tracked railroads. The legislature had the power to regulate and control the operation of the railroad of the Atlantic Avenue Eailroad Company (successor of the Brooklyn and Jamaica Eailroad Company) and of its lessee, the Long Island Eailroad Company. It exercised this power when, by chapter 499 of the Laws of 1897, it changed the grade of the railroad then operated by the Long Island Eailroad Company, as the lessee of the Atlantic Avenue Eailroad Company. It did not create any right to maintain any other or new or additional railroad, nor did it give the right to maintain a four-tracked railroad. (Mayor, etc., v. T. T. S. R. R. Co., 113 N. Y. 316; People v. B. & A. R. R. Co., 70 N. Y. 570 ; People v. Budd, 117 N. Y. 111; C., B. & Q. Ry. Co. v. Illinois, 200 U. S. 561; W., etc., R. R. Co. v. Jacobson, 179 U. S. 296; People v. G. W, etc., T. Co., 112 App. Div. 581; N. Y. & N. E. R. R. Co. v. Bristol, 151 U. S. 570.) Chapter 497 of the Laws of 1899 does not presume to give any additional rights to construct a new railroad; it simply provides that where the grade of a railroad is changed, as is done under the act of 1897, such change of grade shall not affect the rights which the railroad company or its lessees may have, if any at all, to maintain and operate a surface passenger railway on the old right of way. (Matter of Sugden v. Partridge, 174 N. Y. 95 ; Matter of T. A. R. R. Co., 121 N. Y. 541; Matter of M. T. Co., 111 N. Y. 603.) The applicant companies not having shown that they have any rights to operate a street surface railroad on Atlantic avenue, their application for the appointment of commissioners wras properly denied. (Leffman v. L. I. R. R. Co., 47 Misc. Rep. 169.)</p> <p>Neither of these petitioning railroads can maintain this proceeding. By the improvement of Atlantic avenue no right of either the Nassau Electric Eailroad Company nor of the Long Island Bailroad Company to maintain or operate a surface passenger railway upon Atlantic avenue was curtailed or affected within the meaning and intent of chapter 497 of the Laws of 1899-. (L. 1899,. ch. 497; L. 1855, ch. 475 ; L. 1860, ch. 460.) Chapter 497 of the Laws of 1899 is unconstitutional and void. (Const. of N. Y. art. 3, § 18; People v. Allen, 42 N. Y. 404; People v. Albertson, 55 N. Y. 50; People v. Comr. of Highways, 53 Barb. 70.)</p>

The nature of the action and the facts, so far a's material, are stated in the opinion. No negligence was shown on the part of defendant. (Sisco v. N. Y. C. & H. R. R. R. Co., 145 N. Y. 296; Kudik v. L. V. R. R. Co., 78 Hun, 492; Smith v. N. Y. C. & H. R. R. R. Co., 88 Hun, 468; Barrigan v. N. Y., L. E. & W. R. R. Co., 131 N. Y. 582; Niles v. N. Y. C. & H. R. R. R. Co., 14 App. Div. 58; Moeller v. D., L. & W. R. R. Co., 55 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 5, 1905, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action for the reformation, of a policy of fire insurance.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 20, 1906, which reversed an order of Special Term establishing a lien in favor of appellant herein.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 27, 1906, affirming a judgment in favor of defendant entered ppon a verdict directed by the court in an action to recover for the death of plaintiff’s intestate alleged to have been caused by defendant’s negligence.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first‘judicial department, entered December 21, 1906, which affirmed a judgment of the Court of General Sessions of the Peace in the county of New York, rendered upon a verdict convicting the defendant of the crime of manslaughter in the first degree.</p>

<p>Appeal from a judgment, of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 16, 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 an amount alleged to be due as commission upon an exchange of real estate.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 22, 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 by a stockholder to recover certain dividends alleged to be due and unpaid.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 26,1906, reversing a judgment in favor of defendant entered upon the report of a referee and granting a new trial in an action to recover on a policy of fire insurance.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered August 3, 1907, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the defendant to issue election notices with the office of state senator as one of the offices to be filled at the approaching general election omitted therefrom.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 22, 1905, which reversed an interlocutory judgment of Special Term overruling a demurrer to an alternative writ of mandamus, and sustained such demurrer in an action to compel the abatement of an alleged nuisance.

an order of the Columbia County Court requiring the town clerk of the town of Livingston to call a special town meeting for the re-submission of local option questions.

president of the borough of Brooklyn to issue a permit for the opening of the surface of the street and the construction of a double-track surface railway on Nostrand avenue in said borough.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 17, 1907, which reversed an order of Special Term dismissing a proceeding in condemnation to acquire the property rights and franchises of the defendant Waverly Water Company.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 1, 1907, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint in an action to recover the amount of a subscription for stock. The following question was certified: “ Does the complaint herein state facts sufficient to constitute a cause of action ? ”

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 19, 1906, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term in an action to set aside certain documents relating to the estates of Asaph D. Mather, deceased, Joshua Mather, deceased, and Wesley Mather, deceased, and to obtain an accounting of the three estates.</p>

Darling as the candidate of the Republican party for the office of justice of the Municipal Court for the fourth district of the borough of Manhattan.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 17, 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 goods sold and delivered.</p>