Volume 192 — New York Reports

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 4, 1907, in favor of defendant upon the submission of a controversy under section 3279 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> <p>The express language of section 21 of the contract entitles plaintiff, on writing the prescribed amount of insurance, to renewal commissions for the period specified, without reference to the continuance of his employment. (Gillet v. Bank of America, 160 N. Y. 549, 555; Vought v. E. B. & L. Assn., 172 N. Y. 508; Hoffman v. A. L. Ins. Co., 32 N. Y. 405; Kratzenstein v. W. Assur. Co., 116 N. Y. 54; I. S. B. Co. v. Jewett, 169 N. Y. 143; Marshall v. C., etc., Ins. Co., 170 N. Y. 434; People v. Gluck, 188 N. Y. 168; Griffey v. N. Y. C. Ins. Co., 100 N. Y. 417; M. M. L. Ins. Co. v. Coleman, 100 S. W. Rep. 122.) The agreement, read as a whole, shows a clear intention to give commissions on renewal premiums, not as part of the compensation for general services ending with the employment, but as a bonus for writing the prescribed amount of insurance, earned as soon as insurance to that amount is procured. (Insurance Co. v. Williams, 91 N. C. 70; Ballard v. T. Ins. Co., 119 N. C. 187; Scott v. T. Ins. Co., 103 Md. 69; Trimble v. C. M. L. Ins. Co., 13 Wkly. L. Bull. 109; Andrews v. T. Ins. Co., 70 S. W. Rep. 43.) The construction adopted by the court below is inequitable, because it would make the contract an unjust contract, and would place the plaintiff at the mercy of the defendant. (Martin v. N. Y. L. Ins. Co., 148 N. Y. 117; Aldrich v. N. Y. L. Ins. Co., 121 App. Div. 18; Russell v. Allerton, 108 N. Y. 288; Wright v. Reusens, 133 N. Y. 298; Gillet v. Bank of America, 160 N. Y. 549; Schoellkopp v. Coatsworth, 166 N. Y. 77.)</p> <p>Under the terms of the contract between the parties to this action, the plaintiff is entitled to no renewal commission on premiums paid to or received by the company after the discontinuance of his agency. (Shaw v. H. L. Ins. Co., 49 N. Y. 681; Stagg v. C. M. L. Ins. Co., 10 Wall. 589; Burleson v. N. W. M. L. Ins. Co., 86 Cal. 342; King v. Raleigh, 100 Mo. App. 1; Jacobson v. C. M. L. Ins. Co., 61 Minn. 330; Aldrich v. N. Y. L. Ins. Co., 121 App. Div. 18; Butler v. N. Y. L. Ins. Co., 87 Pac. Rep. 1119; Wightman v. N. Y. L. Ins. Co., 119 App. Div. 496.) The agreement must be read as a whole and every part of it must be given effect. When so considered there can be no doubt that Ileyn’s right to renewal commissions terminated when his contract terminated and continued no longer than the continuance of his agency. (Bank of Montreal v. Recknagel, 109 N. Y. 482; Miller v. H. &. S. J. R. Co., 90 N. Y. 430; Ward v. Whitney, 8 N. Y. 442; King v. Raleigh, 100 Mo. App. 23.)</p>

The nature of the controversy and the facts, so far as materia], are stated in the opinion.

The facts, so far as material, are stated in the opinion. The decree of the surrogate denying probate of the paper of July 6, 1905, as a will of real and personal property, is not an adjudication in this proceeding. Inasmuch as all of the proofs establish the competency of the testator at the time that he executed the instrument of July 6, 1905, the court should have found that the paper offered is not the last will and testament of David Goldsticker.

<p>Contract—Construction op Municipal Contract—When Municipality Liable por Additional Expense and Labor. A municipal contract for the construction of a main sewer provided that the contractor should take care of and pump out of the sewer trench all surface water entering the same, together with the flow from all existing sewers, drains and natural watercourses interrupted in his work, and that he was to bear all loss or damage arising out of unforeseen or unusual obstructions or difficulties which might be encountered in the prosecution of the work or from the action of the elements. After the letting of such contract the city entered into contracts with other persons for the construction of lateral sewers, some of which were constructed before the completion of the work under the first contract, through which large quantities of water were discharged into the uncompleted main sewer. None of the provisions of the first contract appear to have specifically referred to the flow of water from the lateral sewers. Held, that it was not within the contemplation of the parties to the contract, nor a reasonable inference to be drawn from its provisions, that the contractor was to take care of the flow of water collected in the new lateral sewers, contracted for and constructed after he had entered into his contract for the construction of the trunk sewer, and that the city had no right to subject him to such additional expense Rnd labor.</p>

The facts, so far as material, are stated in the opinion. The Court of Claims has always had jurisdiction, without a special act of the legislature, to hear and determine a private claim arising upon or out of a contract lawfully made with the state. (Cayuga County v. State, 153 N. Y. 288; Remington v. State, 116 App. Div. 522; Lord v. Thomas, 64 N. Y. 109; Danolds v. State, 39 N. Y. 44; Schaub v. State, 88 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 21, 190S, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint.

The nature of the action and the facts, so far as material, are stated in the opinion. The City Trust Company having received the money of the Hartman Company in payment of Umsted’s debt, is liable to the Hartman Company for the money so unlawfully taken. The appellant, as a judgment creditor of the Hartman Company, whose execution has been returned unsatisfied, has a right to reach this claim of the Hartman Company. (Stetson v. Hopper, 60 App. Div. 277; Code Civ.

The facts, so far as material, are stated in the opinion. There was sufficient evidence to prove intent. (People v. Schuyler, 106 N. Y. 298.) On the evidence in this case it was proper to submit the question of malice or intent to the jury. (Rex v. Maloney, 9 Cox C. C. 6; Roscoe’s Crim.

<p>Service of Process — Designation by Foreign Insurance Company of Person upon Whom Process May Be Served — When Such Designation Cannot Be Revoked. Where a state, by various statutes, requires life insurance companies, as a condition of doing business within the state, to designate some representative upon whom service of process may be made, and in effect prohibits them from revoking such designation so long as any liabilities remain outstanding against them within the state, a life insurance company, which had complied with such requirement, and done business within the state, cannot withdraw therefrom and revoke its designation of a representative, so as to prevent service of process in an action brought upon a contract of insurance by an assignee thereof, who lived in the state, although such contract was made with a non-resident of the state, where the contract was transferred to such assignee in good faith, and not merely for the purpose of bringing an action thereon, several years before the company had attempted to cancel its power of attorney for the service of process; especially where the facts justify the inference that for several years such assignee, while living in the state, had paid dues to the company, and thereby maintained the validity of the contract of insurance.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. In ascertaining the net income from passenger traffic the appellant was entitled to the deduction of the amounts specifically found by the learned referee to have been actually paid or incurred as taxes upon the instrumentalities employed in conducting the traffic. (Gibb v. P. Nat.

The nature of the action and the facts, so far as material, are stated in the opinion. No limit direction can be inferred from section 104 of the Railroad Law. (Wells v. N. Y. City Ry. Co., 122 App. Div. 488; Jenkins v. B. H. R. R. Co., 29 App. Div. 11.) The language of this statute is so plain and clear as to exclude any question of construction. (Levine v. Nassau Ry. Co., 50 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. Defendant is not liable to plaintiffs by reason of the laying out and opening of Warburton avenue over the Old Mill road in 1860.

This action was brought to recover the amount paid upon a contract for the purchase of land as well as the amount incurred for expenses in examining the title and to establish and enforce a lien therefor upon the ground that the plaintiff was ready and willing to perform while the defendant was not because the title was unmarketable. The answer admitted the contract and the payment made thereon, but denied the remaining allegations of tlie complaint.

<p>1. Real Property — Vendor and Purchaser—Equitable Lien— Vendee May Have Lien for Amount Paid on Purchase Price When There Is a Contract. A vendee who has made a payment upon an executory contract for the purchase of land has an equitable lien for the amount paid, by virtue of such contract and the payment thereon, so that, upon default by the vendor without fault of the vendee, the latter can foreclose the lien; but there can be no lien without a contract. The contract is the essential basis of the lien, for payment is simply an observance by the vendee of one of the express terms thereof. Rescission, therefore, destroys the contract ab initio and leaves the parties, in the same situation as if no contract had ever been made, so that no líen can be had under such circumstances.</p> <p>3. Same — Action for Rescission of Contract for Purchase of Land for Fraud Practiced by Vendor — Vendee Not Entitled to Lien for Amount Paid — May Have Money Judgment Therefor, after Rescission of Contract. A vendee who is induced to enter into a contract for the purchase of land and pay part of the purchase price thereof, by false representations of the vendor, may maintain an action in equity for the rescission of the contract, and if rescission be decreed he becomes entitled to full relief, which includes, as an incident to rescission, the recovery of the amount paid on the execution of the contract. When the contract falls all rights derived therefrom by either party fall with it. The vendee has no right to a lien depending on the contract and the vendor has no right to retain the amount paid thereon. While the court has no power, in such an action, to render a judgment establishing a lien, it has power to decree rescission and follow it by such further relief as may be appropriate to rescission, even if it involves a j udgment for money only. If rescission is not decreed there can be no judgment for money, but that legal relief necessarily follows the equitable relief, when granted.</p> <p>3. Same ■—Erroneous Judgment in Action to Rescind Contract for Fraud of Vendor. Where, therefore, in an action brought by a vendee to rescind a contract for the purchase of land, on account of fraud practiced upon him by the vendor, to recover the sum paid on the contract and to establish a lien on the land therefor, the allegations of fraud were established by the evidence and judgment was awarded rescinding the contract, directing the recovery of the sum paid with interest thereon and adjudging the vendee to have a lien upon the premises for the amount paid and directing the foreclosure thereof, and a judgment for the deficiency, if any, that part of the judgment which awarded judgmenfc for a rescission of the contract and a return of the money paid thereon is proper, hut the part awarding a lien and directing the foreclosure thereof with judgment for deficiency is erroneous, and should be stricken out.</p> <p>4. Pleading — Complaint — Demand for More Relief Than Plaintiff Is Entitled to — What Judgment May Be Rendered — Code Civ. Pro. § 1207. The fact that the plaintiff, in such action, demanded more than he was entitled to is not important, because the defendant interposed an answer, denying the allegations of the complaint and pleading ratification and waiver hy the plaintiff of any right to rescind or to recover damages, and when an answer has been interposed the Code provides that ‘‘the court may permit the plaintiff to take any judgment, consistent with the case made by the complaint and embraced within the issue.” (Code Civ. Pro. § 1207.)</p>

Appeal, by permission, from an order of tbe Appellate Division of the Supreme Court in tlie third judicial department, entered November 18,1907, which affirmed an order of Special Term continuing an injunction pendente lite. The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. ■ Viewed only as a stockholders’ bill, the demurring defendants are proper parties, and, therefore, the complaint states a cause of action as to them.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in not submitting to the jury the questions whether under the circumstances proven in the case the defendant was not negligent of a duty which it owed to the plaintiff in selling the bottle in question without subjecting it to a more careful and thorough test than it did, and whether the explosion was due to a weakness which 'such a test would have disclosed.

This action was brought to compel specific performance of an option of purchase contained in a written lease of a farm theretofore entered into by plaintiff’s assignor as lessee and the defendant as lessor, and resulted in a judgment directing the defendant to specifically perform such option and convey and transfer by warranty deed the farm in question free of any and all incumbrance, mortgage or lien, on the tender to her or to her attorney of a certain sum of money.

. The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in permitting the plaintiff to testify, either directly or indirectly, to conversations between herself and her late husband concerning the deeds or the property affected thereby.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in charging as requested by the plaintiff that where a contract is in part illegal and the illegal part is severable from the balance, the fact of such illegality is not to render the whole contract illegal, but the courts will recognize and enforce the legal part. (Gray v. Hook, 4 N. Y. 449; Woodworth v. Bennett, 43 N. Y. 273; 15 Am. & Eng.

The nature of the action and the facts, so far as material, are stated in the opinion. It was reversible, error for the court to decline to charge the jury that if the plaintiff knew the crane was to be moved he cannot recover. (Morris v. Railway Co., 148 N. Y. 182; Sullivan v. Dunham, 10 App. Div. 438.) It was not reversible error for the court to decline to charge the jury that if the plaintiff knew the crane was to be moved he cannot recover.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant was clearly guilty of negligence in failing to supply plaintiff with a reasonably safe place in which to work and in failing to warn plaintiff of the danger.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff utterly failed to prove a cause of action on his first count in his amended complaint against the defendant under the provisions of section 48 of the Stock Corporation Law. (Halbert v. Pranke, 97 N. W. Rep. 976; Martin v. Bigelow, 36 Misc. Rep. 298; Matter of Pattenhill, 135 Fed. Rep. 218; Coates v. Donnell, 16 J. & S. 48; Upson v. Mt. Morris Bank, 103 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 8, 1908, which affirmed an interlocutory judgment of the Municipal Court of the city of Buffalo sustaining a demurrer to the complaint. The nature of the action, the facts, so far as material, and the questions certified, are stated in the opinion.

The nature of the action and the facts, so far as material, áre stated in the opinion. There was not any proof of negligence on the part of the defendant compelling or justifying the submission to the jury of the question of defendant’s negligence.

<p>1. Contract — Provision in Contract for Construction of Masonry Dam, Permitting Alterations in Plan and Materials — When It Does Not Authorize Change of Dam from One of Masonry to an Earth Dam with Masonry Center. Where a construction company entered into a contract to build a masonry dam for a water power company at unit prices for each kind of work to be performed, the payments to be made monthly for eighty-five per cent of the work done, the balance to be paid at the completion of the work or, at the option of the water power company, payment for the work to be made in first mortgage bonds of the company at a designated price, instead of in money, and the contract also contained a provision that the water power company might “ make alterations in the line, grade, plans, form, position, dimensions or material of the work to be performed,” and that “if such alterations diminish the quantity of the work to be done they shall not constitute a claim for damages or for anticipated profits on the work that may be dispensed with, ” any increase to be paid for at the price named in the contract, or in case no price is fixed therein the work to be paid for “ at its actual reasonable cost as determined by the engineer, plus ten per cent of said cost,” such provision did not authorize the water power company, after the commencement of the work and without the consent of the construction company, to change the structure from a masonry dam to an earth dam with a masonry center.</p> <p>2. Same —- Construction and Effect of Provision Permitting Alterations. While the provision in question gave the water power company great power to alter and modify the plans of the work and the materials and quantities that might be used in the construction of the dam, yet it did not authorize the water power company to alter or destroy the essential identity of the thing contracted for. Under the contract the construction company did not become obligated to furnish labor and materials for the prosecution of any work or the construction of any structure the water power company might designate. Its obligation was not only confined to the construction of a dam, but to the construction of a particular kind of dam, to wit, a masonry dam; and the provision that the dam was to be of masonry was as essential an element of the identity of the structure as was the provision that it was to be a dam.</p> <p>3. Same —When Change in Plan of Dam from One of Masonry to an Earth Dam with Masonry Core Constitutes Breach of Contract. Where the change in the dam, as proposed by the water power company, would have required many cubic yards of earth, when none was called for by the original contract, for which no price was fixed, and would have reduced the masonry to about one-third of the amount called for by the contract, so that there would have been a very substantial change in the cost of the work and the profit resulting therefrom, the proposed change constituted a breach of contract which justified the construction company in refusing to accede thereto and in abandoning the work, especially as the construction company had a substantial interest in the character of the structure itself, so far as it involved permanence and durability, since the company had agreed to receive its pay in the bonds of the water power company secured by a first mortgage on the dam and the plant of the water power company, if that company so elected, and if the scheme of an earth dam with a masonry core should prove to be a failure, the value of the bonds would be seriously impaired.</p> <p>4. Same — Contention That Water Power Company Was Not ' Justified in Abandoning Contract, Not Sustained.by Findings of Fact. Where, in the action brought by the construction company against the water power company to recover the amount claimed to be due on the contract and for loss of profit as damages, for the breach of contract by the water company, it was found by the referee that the plans furnished by the water power company for an earth dam with masonry core “ were never withdrawn, nor was the plaintiff ever advised that they_ would he withdraxvn, or that the original plans would be restored,” a contention that, even if the xvater power company erred in the claim made by it during the controversy with the construction company, that did not necessarily justify the construction company in abandoning the work, cannot he sustained, especially where there is no finding that the water power company was willing to carry out the contract on its part and, under the present construction of the rights of the parties, the facts found by the referee negative any such willingness.</p> <p>5. Arbitration Clause — Provisions Requiring Submission op Controversies Under Contract and as to Amount op Worn to ¿Engineers as Reperees — Construction and Eppect Thereof — When Hot a Bar to Action. A provision in such contract that, in order to prevent disputes and litigation, all questions which might arise under the contract and as to the amount or quantity of the work to be paid for thereunder should be decided by the engineers of the water power company as referees, their decision to he final, is not a bar to the prosecution of an action, which is brought to recover; first, for the balance due foj~weri$-done under the contract; second, for damages for breach of the contract. If the provision was intended to withdraw all controversies relating to the contract from the courts and submit them to arbitration, it will not be enforced. If it was intended to apply only to the amount and quality of the work done, for which pay is demanded, the provision is enforceable, and the certificate or estimate of the engineer, unless unreasonably refused, is a necessary prerequisite to a recovery for work done; hut it is not a limitation upon or a bar .to the cause of action for the damages Caused by the defendant’s breach of contract. /i</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The rule of law that only parties to a sealed instrument can assert a cause of action or defense arising out of it does not apply to this case; the defense of fraud is available to the appellants. (McCreery v. Day, 119 N. Y. 1; McIntosh v. Miner, 37 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 25. 1908, which reversed a judgment of Special Term sustaining a demurrer to and dismissing the complaint, and overruled such demurrer. The nature of the action, the facts, so far as material, and tile questions certified are stated in the opinion.

Josephine Louise Newcomb died in the city of New York on the 7th of April, 1901, at the age of eighty-five, leaving an estate worth more than $2,000,000 and an instrument purporting to he her holographic will, executed at the city of New Orleans on the 12th of May, 1898, of which the material part is as follows: “First.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 19, 1907, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term, which restrained and enjoined the defendant from building on certain premises belonging to her.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The construction of the defendant’s deed urged by the plaintiff is plainly in violation of the well-established rule of law that a deed is to be most strictly construed against the grantor and the grantor shall not be presumed to derogate from his own grant. The defendant furthermore invokes the benefit of the correlative rule that so far as the extension by implication of an easement created by reservation is concerned the matter stands on principle in a position very different from an easement created by grant. (Wells v. Garbutt, 132 N. Y. 430; Jackson v. Gardner, 8 Johns. 394; Jackson v. Blodgett, 16 Johns. 172; Borst v. Empie, 5 N. Y. 33; Duryea v. Mayor, etc., 62 N. Y. 597; Ives v. Van Auken, 34 Barb. 566, Grafton v. Moir, 130 N. Y. 470; Mason v. Thwing, 94 App. Div. 77; Johnston v. L. I. Inv. Co., 85 App. Div. 64; E. L. Ins. Society v. Brennan, 148 N. Y. 671.) The so-called reservations in the deeds to Mr. Holmes and to the defendant, under which reservations the plaintiff’s rights, if any, arise, are without any legal effect or validity whatever. (Hurd v. Curtis, 7 Metc. 110; Borst v. Empie, 5 N. Y. 38; Ives v. Van Auken, 34 Barb. 566.)</p> <p>The plaintiff, by the language of the deeds under which he and defendant took title, had an easement of light, air and prospect over each and every part of the vacant lot, which is the subject-matter of this suit, necessary to permit access of light, air and prospect from the aforesaid courtyard to the plaintiff’s residence. (Rector, etc., v. Mask, 93 N. Y. 488; Lattimer v. Livermore, 72 N. Y. 174; Andruss v. N. S. R. Co., 72 App. Div. 553; Grafton v. Moir, 130 N. Y. 465; Johnston v. L. I. Inv. Co., 85 App. Div. 64; Gay v. Walker, 36 Me. 54; Haggerty v. Lee, 54 N. J. Law, 580; Hurd v. Curtis, 7 Metc. 110; Bowen v. Conner, 6 Cush. 132; Koelle v. KJnecht, 99 Ill. 396; Brown v. Meady, 10 Me. 391.) The acts of the parties were entirely in accord with the plaintiff’s contention. (E. L. S. J. O. H. v. Buffalo H. A., 64 N. Y. 564; Onthank v. L. S. & M. S. R. R. Co., 71 N. Y. 197; Kingsland v. Mayor, 45 Hun, 203; Reed v. Proprietors, 8 How. (U. S.) 274; Mount v. Hambley, 33 App. Div. 109; Putzel v. Van Brunt, 8 J. & S. 509.) Even if the reservation in the deed and the conveyance to Mitchell had not vested him with an easement in so much of that portion of “ M ” as was conveyed to the defendant as was essential to light, air and prospect to the whole of Mr. Mitchell’s house, he would have taken by such conveyance, as an incident, easements over all of the vacant lot granted to the defendant necessary to enable the complete enjoyment of light, air and prospect from “ O.” (R. E. L. Co. v. R. P. Co., 15 N. Y. Supp. 33; Leonard v. Leonard, 7 Allen, 277; Grafton v. Moir, 130 N. Y. 465; White v. Hotel Co., 68 N. H. 38; St. A. F. W. P. Co. v. City of Minneapolis, 41 Minn. 270; Fort v. Brown, 46 Barb. 366; Allen v. Scott, 21 Pick. 25; Fisk v. Brayman, 21 R. I. 195; Noble v. I. C. R. R. Co., 111 Ill. 437; Dand v. Kingscote, 6 M. & W. 174; Goold v. G. W. D. C. Co., 12 L. T. Rep. 842.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 18, 1907, which affirmed an interlocutory judgment of Special Term in an action brought to obtain a construction of the wills of George' Jones, ¡Rebecca Mason Jones and Frances Jones with reference to a fund held by the plaintiff as trustee. George Jones died in the city of Hew York on December 13th, 1886. He left no widow.

<p>1. Security for Costs — Right of Executor, Sued in Representative Capacity by Non-resident, to Security for Costs —Code Crv. Pro. §§ 3368, 3371, 3376. An executor of an estate sued in his official capacity hy a non-resident of the state is entitled to security for costs as a matter of right, because the plaintiff is a non-resident (Code Civ. Pro. § 3368), and is also entitled to such security, in the discretion of the court, because he is sued as an executor in his representative capacity (Code Civ. Pro. § 3371). Under section 8376 of the Code of Civil Procedure, such executor is also entitled, after the allowance of an undertaking, given as security pursuant to an order granted under said section 3371, or under section 3378, and in a proper case, to an order requiring the plaintiff to give an additional undertaking, if the sum specified in the first undertaking is insufficient, or the security thereof unsafe, or if the court is satisfied that such additional undertaking- is required to secure a judgment rendered against the plaintiff for costs in such an action, upon an appeal therefrom.</p> <p>3. Same — When Procuring of Undertaking by Non-resident Plaintiff, After Granting of Order Requiring Undertaking, but Before Entry Thereof, Does Not Constitute Voluntary Giving of Undertaking—When Executor Does Not Waive Right to Additional Security by Accepting Such Undertaking. Where an executor, sued in his representative capacity by a non-resident, obtained an order requiring the plaintiff to give security for costs, upon his failure to appear after service of motion for such order, but the plaintiff, before the order was entered, filed an undertaking, duly allowed and approved hy a justice of the Supreme Court, which was accepted by the defendant as satisfying the terms of the order, which was thereafter filed and entered and a copy served upon the plaintiff, it cannot he held that the undertaking was voluntarily given hy plaintiff and that the defendant, by accepting the undertaking so given in advance of the entry of the order and omitting to require the plaintiff to give a new undertaking in the same form and for the same amount after the order was actually filed, thereby waived his right to additional security as provided by said section 3876.</p>

The facts, so far as material, are stated in the opinion. The property for which the award of $30,000 was made consisted wholly of trade fixtures, which were the sole property of these appellants, and they were entitled, therefore, to the whole award for the same. (Matter of Totten, 179 N. Y. 112; 2 Taylor on Landl. & Ten. [8th ed.] § 544; 1 McAdam on Landl. & Ten. [3d ed.] 709, § 211; M. Nat. Bank v. Shinn, 18 App.

The facts, so far as material, are stated in the opinion. It was reversible error for the trial court to permit the district attorney, upon his cross-examination of a witness as to the defendant’s character for peace and quiet, to inquire as to alleged particular acts of the defendant’s bad conduct.

Robert E. Campbell, a resident of Erie county in this state, died intestate at Buffalo, May 27th, 1907. He did not leave him surviving a widow, descendant, father or mother.

<p>Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 23, 1908, in favor of plaintiff, upon the submission of a controversy under section 1279 of the Code of Civil Procedure.</p> <p>The Appellate Division, in the order permitting the appeal, certified five questions to this court:</p> <p>1st. Is chapter 734 of the Laws of 1904 unconstitutional in that it authorizes the taking of property for the purposes of the act without just compensation ?</p> <p>2nd. Is such Act unconstitutional in that it fails to make provision for the establishment of a definite tax district with precise boundaries prior to the creation of an indebtedness for the improvement contemplated by the act ?</p> <p>3rd. Is such Act unconstitutional in that it fails to provide for reasonable notice, to the persons interested, of the proceedings to be taken by the plaintiff commission under the provisions of said Act?</p> <p>4th. Is such Act unconstitutional in that it authorizes the taking of the defendant’s land for the purposes of the improvement, upon the theory that the public health and safety require the same, whereas, it permits the assessment of the expense, of such improvement upon property upon the basis of benefit thereto not related to the public health or safety ?</p> <p>5th. Is such Act unconstitutional for any other reason ?</p> <p>The nature of the controversy and the facts, so far as material, are stated in the opinion.</p> <p>Chapter 734, Laws of 1904, is unconstitutional in that it makes no sure and adequate provision for the payment to the landowner of a just compensation for the land to be taken for the purposes of the act. (Matter of South Market St., 67 Hun, 594; Sage v. City of Brooklyn, 89 N. Y. 189; Brewster v. Rogers Co., 169 N. Y. 73; Chapman v. Gates, 54 N. Y. 132; Mitchell v. Vil. of White Plains, 62 Hun, 231; People v. Hayden, 6 Hill, 359.)</p> <p>Chapter 734 of the Laws of 1904 is not unconstitutional upon the ground that it makes no sure and adequate provision for the payment to the landowner of a just compensation for the land to be taken for the purpose of the act, inasmuch as by the express terms of the act property can only be taken for the purposes of the improvement by means of condemnation proceedings conducted for that purpose in precisely the same manner as land is taken under the right of eminent domain in ordinary cases. And it is only upon actual payment of the cotnpensation for the land as determined by the commissioners in condemnation that the respondent is entitled to enter into the possession of the property and take and hold it for the public use. (Code Civ. Pro. § 3371; Vil. of St. Johnsville v. Smith, 184 N. Y. 341; Litchfield v. Bond, 186 N. Y. 66; People ex rel. Simpson v. Wells, 181 N. Y. 252; Waller v. State, 144 N. Y. 579; People ex rel. Jackson v. Potter, 47 N. Y. 375; Smith v. People, 47 N. Y. 330; S. W. W. Co. v. Vil. of Skaneateles, 161 N. Y. 154; Matter of Vil. of Middletown, 82 N. Y. 196; Keating v. Gunther, 32 N. Y. S. R. 1112; Matter of City of New York, 118 App. Div. 224; Forster v. Scott, 136 N. Y. 577.) The act of 1904 is not unconstitutional and defectire upon the ground that it provides no sufficient notice and affords no sufficient opportunity to the parties interested to be heard. (Matter of Zbrowshi, 68 N. Y. 88; People v. Smith, 21 N. Y. 595; Matter of Tuthill, 163 N. Y. 133; Code Civ. Pro. § 3360; Matter of City of Amsterdam, 126 N. Y. 158; Matter of Vil. of Middletown, 82 N. Y. 196; Matter of Mayor, etc., 99 N. Y. 569; Overing v. Foote, 65 N. Y. 263; People v. Feitner, 81 App. Div. 118; Donovan v. City of Oswego, 90 App. Div. 337; P. R. Co. v. Buffalo, 29 App. Div. 160; Matter of De Peyster, 80 N. Y. 565.)</p>

<p>(1.) Mubdeb—Sufficiency of Evidence to Wabiiant Conviction.</p> <p>The evidence upon the trial of a defendant indicted for murder examined, and held, to present a question for the jury and to he sufficient to warrant a verdict of conviction.</p> <p>(3.) When Alleged Wbitten Confession Cannot be Received in Evidence Without Pbeliminaby Examination.</p> <p>Where in a criminal prosecution a paper alleged to he a written confession hy the defendant is offered in evidence against him and he objects to its admission and offers to prove at that stage of the trial that the paper was procured from him by such threats or promises or under such other circumstances as, if established, would render it inadmissible, it is the duty of the trial judge to receive the evidence thus offered against the admissibility of the alleged confession before deciding as to the competency of the confession itself ; and it is error to admit the paper without first receiving and considering such evidence.</p> <p>(3.) Same—Pbeliminaby Evidence That Confession Was Voltintabii.y Made—Defendant’s Omission to Show ob to offish to Show That Confession Was Impbopbbly Obtained.</p> <p>Where, however, there is evidence prior to the reception of the confession tending to show that it had been voluntarily made and there is no offer on behalf of the defendant to prove any circumstance tending to show that it was improperly obtained, or any request made on his part to be allowed to give evidence on the subject-, the defendant is deprived of none of his rights hy the reception of the alleged confession in evidence, especially where the trial judge takes special care to ascertain hy an examination of the officers to whom the confession was made, that it was not induced hy any threat or promise of immunity, before he decides to admit the paper.</p> <p>(4.) When Refusal to Chabge That Jury Must Be Satisfied That the Alleged Confession “Was Not Procured by Inquisitorial Compulsion or Other Improper Means,” Not Erroneous.</p> <p>Where, on the trial of a defendant indicted for murder, the trial judge in his principal charge has not referred to the possibility that a written confession of the defendant, which had been received in evidence, might have been procured hy inquisitorial compulsion, his refusal of a request to charge that the jury must be satisfied that the alleged confession “ was not procured by inquisitorial compulsion or other improper means,” presents no error, where in view of the uncontroverted evidence in the case relating to the manner in which the confession ivas obtained, it appears that no inquisitorial, or other compulsion, was exercised over the defendant in order to obtain the confession.</p> <p>(5.) Confession Made to Officers Having Defendant in Custody Properly Received in Evidence under Section 395 of Code of Criminal Procedure.</p> <p>A contention that, as the alleged confession was made neither in the course of judicial proceedings nor to a private person, but was made to public officers having the defendant in custody under a warrant of arrest, there was no authority in law for the admission of the confession in evidence, inasmuch as the provisions of section 395 of the Code of Criminal Procedure are to be deemed exclusive and to prohibit the reception of any alleged confession in a criminal prosecution except such as are made either in a judicial proceeding or to a private person, cannot be sustained, since the private person referred to in the statute obviously means any person not engaged in the conduct of a judicial proceeding.</p> <p>(6.) When Evidence Tending to Prove Defendant Guilty of a Crime, Other Than That For Which He Is on Trial, Admissible.</p> <p>A contention that the admission of evidence of other murders and of an • assault alleged to have been committed by the defendant at the same time as his alleged commission of the murder for which he was on trial, constituted error, inasmuch as the defendant was on trial for but one murder and the evidence thus received tended to establish the commission of other and different crimes, cannot be sustained, since upon the trial of a criminal case, evidence which is relevant to the issue raised by the plea to the indictment is not made inadmissible by reason of tho fact that it tends to prove the defendant guilty of another crime than that charged in the indictment. Such evidence is received not because it is proof of the other crime, but because of its relevancy to the charge upon trial.</p> <p>(7.) Evidence Corroborative of a Confession Admissible, Hot Only as to Commission of Crime for Which Defendant Is Being Tried, But as to Other Crimes Mentioned Therein.</p> <p>A contention that proof offered by the prosecution in corroboration of the confession should have been strictly confined to corroborating that part thereof relating to the murder for which the defendant was on trial, cannot be sustained, since where several crimes are referred to in the same confession the whole thereof is admissible, and under the rule which requires corroboration of a confession by other proof of the commission of the offense charged, corroborative evidence is receivable, not only as to the commission of the crime for which the defendant is being tried, but also as to the commission of the other crimes mentioned in the confession and presumably committed by the same individual at or about the same time.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 10, 1906, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at 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 bound to issue to this plaintiff a mileage book or ticket for 500 miles on payment or tender of ten dollars, and defendant had no right to impose any conditions, except such as are prescribed in the act of 1895 and subsequent amendments thereto. (3 Gumming & Gilbert’s Gen. Laws, 3197, 3198.) The provisions appearing upon the face of the book, that “ During the months of June, July and August it is good only for the person in whose name it is issued, and shall be taken up and forfeited if presented by any other person,” are and were absolutely void and are of no force or effect whatever. (Trolan v. N. Y. C. R. R. Co., 31 App. Div. 320; Horton v. E. R. R. Co., 65 App. Div. 587.) The respondent’s contention that it was not subject to the provisions of the “ Mileage Rook Law,” because it was the organized or consolidated result of four other corporations respectively created and in existence prior to the passage of the act of 1895, is unsound, and is contrary to the reason and the law of the case. (Minor v. E. R. R. Co., 171 N. Y. 566.)</p> <p>The ticket the plaintiff presented to the conductor on the two occasions mentioned in the complaint did not entitle her to ride and the conductor was justified in requiring her to leave the train unless she paid her fare or presented some other ticket than the one she did present. (Monnier v. R. R. Co., 175 N. Y. 281; Mosher v. S. I., etc., R. R. Co., 127 U. S. 390; Boylan v. H. S. R. R. Co., 132 U. S. 146; N. Y., L. E. & W. R. R. Co. v. Bennett, 50 Fed. Rep. 496; Bradshaw v. S. B. R. R. Co., 135 Mass. 407; Frederick v. M. H. & O. R. R. Co., 37 Mich. 342; Pease v. D., L. & W. R. R. Co., 101 N. Y. 367; Scott v. C. P., etc., R. R. Co., 53 Hun, 414; N. C. R. R. Co. v. Olds, 40 Ill. App. 421.) The Mileage Book Act, chapter 1027, Laws of 1895, is unconstitutional as to the Ulster and Delaware Bailroad Company, and the provisions of that act cannot be made use of to aid the plaintiff’s case. (Beardsley v. N. Y., L. E. & W. R. R. Co., 162 N. Y. 230; L. S., etc., Co. v. Smith, 173 U. S. 684; People ex rel. Schurz v. Cook, 110 N. Y. 443; Parker v. E., etc., Co., 165 N. Y. 274.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 23, 1907, which reversed a judgment in favor of plaintiff entered upon a decision rendered at a Trial Term of the Municipal Court of the city of New York.

<p>1. Comity— When Courts of This State Will Enforce Right of Action Arising in Foreign State. The courts of this state are open to all suitors and will enforce transitory rights of action, where the liability asserted is recognized by the common law, is contractual in its nature and is not violative of our public policy. This obligation of comity is only denied where a foreign statute is sought to be enforced against a citizen, which has created á liability, or has granted a remedy, unknown to the common law, or contrary to our declared policy.</p> <p>2. Jurisdiction—When Action on Bond Executed in Foreign State to Recover Deficiency on Sale in Forecloscre Maintainable in This State. Where a statute of a foreign state prescribes that in the event of a deficiency on a sale of mortgaged premises under foreclosure proceedings it shall be lawful to proceed on the bond, accompanying the mortgage, for such deficiency, but that the action must be commenced within six months from the date of the sale of the mortgaged premises, and there is no other restriction in the statute in regard to the action nor any provision therein confining it to the courts of that state, such an action is maintainable in the courts of this state, if brought within the time prescribed by the statute, where the obligors on the bond have since removed to this state, since the action is one to enforce a common-law liability, and the action is transitory in its nature and is maintainable outside of the state where the contract was made.</p> <p>3. Same. A contention that to allow a recovery upon the bond in this state would work injustice, inasmuch as the obligors would be compelled to pay the deficiency arising on the mortgage sale, and would be deprived of the right to bring an action for the redemption of the mortgaged premises, given by the foreign statute where a judgment has been recovered on the bond, cannot be considered of any force, where there is nothing in such statute limiting the right to sue in redemption to a case where the judgment on the bond has been obtained in the courts of such foreign state, and, for all that appears, the obligors, upon the recovery of a judgment against them in this state, may bring their action to redeem in the courts of the foreign state and set up the judgment as 'ground for the equitable relief demanded.</p>

<p>1. Will—Action for Construction of Will, in Which Next of Kin of Testator Are Parties Defendant—Nature of Judgment. Where a testator devised and bequeathed his residuary estate, in trust, to a charitable corporation which he directed to be formed after his death, and, in an action brought by the executor of such will against the legatees and next of kin of said testator, for a judicial construction of the will, the Supreme Court decided that such gift was lawful and valid, and that the next of kin were not entitled to the income of the trust fund which had accumulated in the hands of the executor between the death of the testator and the organization of the corporation authorized to take and hold the same, and directed judgment that such accumulated income be paid to said corporation, such judgment is a several judgment, not a joint judgment.</p> <p>2. Same—When Interest of Next of Kin in Such Judgment Several, Not Joint. The fact that the issues, on which the case was decided, were common to all of the next of kin does not render the j udgment against them a joint judgment. The action was not brought, and could not have been brought, against the next of kin as a class, but each was a separate party in interest and was made a defendant that he might defend or assert his rights in his own behalf. If the Supreme Court had decided by such judgment, as was afterwards held by the Court of Appeals, in reversing the judgment, that the next of kin were entitled to the accumulated income, there would have been awarded to the several next of kin their proportionate shares of such accumulated income, under the Statute of Distribution. The interest of each of the next of kin therein was several, belonging solely to himself and subject to his unrestricted disposal without regard to the others. The next of kin were not joint tenants, but tenants in common, and the action or litigation of one cannot conclude or affect the rights of the others and therefore the judgment against the interest of each was several.</p> <p>3. Same—Next of Kin Who Did Not Appeal from Judgment Construing Will Cannot Take Advantage of Reversal Thereof on Appeal by Others. Where, therefore, part of the next of kin appealed from such judgment to the Court of Appeals, which reversed it in part and directed that it be modified so as to give to the next of kin of testator the income of his residuary estate which had accumulated between the date of his death and the organization of the charitable corporation, which he directed to be formed, the next of kin who did not appeal from the judgment cannot take advantage of such reversal and modification, since a judgment in an action for the construction of a will does not differ in effect from judgments in other actions, and the rights of the non-appealing defendants must be determined by the same rules that apply to similar appeals from judgments generally, and, hence, by their failure to appeal, such defendants must be held to have acquiesced in the decision of the Supreme Court, erroneous though it was; and they are not entitled to partake in the division of said accumulated income, under the decision of the Court of Appeals, but the proportionate shares of such non-appealing next of kin, therein, must be paid to the charitable corporation, under the judgment of the Supreme Court.</p>

The Kursheedt Manufacturing Company is a domestic corporation engaged in the manufacture of .trimmings in the city of New York. The defendant at all times mentioned in the record was the treasurer of said company and the superintendent of its factory.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 14, 1907, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The exception of the defendant railway company to the charge of the learned trial justice to the jury presents reversible error. (Ross v. M. S. R. Co., 104 App. Div. 378; Fielders v. N. J. S. R. R. Co., 58 Atl. Rep. 404; Eckes v. Stetler, 98 App. Div. 81; City of Rochester v. Campbell, 123 N. Y. 412; Koch v. Fox, 71 App. Div. 288; Kane v. N. Y., N. H. & H. R. Co., 132 N. Y. 160; O'Neill v. Crane, 77 App. Div. 638; Shrimpton v. Dworsky, 2 Misc. Rep. 123; Sciurba v. Met. S. R. Co., 73 App. Div. 170; Roseman v. Mahony, 86 App. Div. 377; Regan v. P. Ins. Co., 33 App. Div. 78; Rouse v. Lewis, 4 Abb. Ct. App. Dec. 121; Palmer v. Kelly, 56 N. Y. 637; Jackson v. Odell, 11 Wkly. Dig. 325.)</p> <p>The original and primary obligation to repair rested upon this defendant, and the existence of this hole where plaintiff fell was due to a disregard of this duty by the defendant. (Conway v. City of Rochester, 157 N. Y. 38; Doyle v. City of New York, 58 App. Div. 588; Simon v. M. S. R. Co., 29 Misc. Rep. 126; Erhert v. City of New York, 59 App. Div. 611; City of Amsterdam v. F., J. & G. R. R. Co., 51 Misc. Rep. 438; Simon v. M. S. R. Co., 29 Misc. Rep. 126.) The charge as requested by the plaintiff’s counsel was correct in form and substance. (City of Amsterdam v. F., J. & G. R. R. Co., 51 Misc. Rep. 438; Caldwell v. N. J. S. Co., 47 N. Y. 282; Gillespie v. D. D., E. B. & B. R. R. Co., 12 App. Div. 501; Smith v. Matthews, 152 N. Y. 152; Chellis v. Chapman, 125 N. Y. 214; Doyle v. B. H. R. R. Co., 58 App. Div. 588; McMahon v. S. A. R. R. Co., 75 N. Y. 231; Sullivan v. S. I. R. R. Co., 50 App. Div. 558; Lowery v. B. C. & N. R. R., 76 N. Y. 28; Rockwell v. T. A. R. R. Co., 64 Barb. 438.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The fact that the plaintiff’s horse became frightened by the usual and ordinary sounds caused by the starting in motion of an electric car, and caused an injury to the plaintiff under the circumstances shown by the evidence in this case, creates no liability on the part of the defendant. (McDonald v. T. C. S. Ry. Co., 74 Fed.

Cross-appeals from an order of the Appellate Division of the Supreme Court in the third judicial department, entered Hay 5, 1908, which affirmed a judgment in favor of plaintiff entered upon a decision of the Court of Claims. The nature of the claim and the facts, so far as material, are stated in the opinion. The judgment of the Court of Claims must be supported by its findings of fact or fall, and the findings here do not support the judgment.

The facts, so far as material, are stated in the opinion. The verdict was against the weight of evidence and justice requires that a new trial he granted. (People v. Place, 157 N. Y. 594; People v. Harris, 136 N. Y. 453.) The court committed reversible error in allowing evidence offered by the. People of a general bad reputaton of the defendant when he himself had not first placed in issue the question of his character by offering evidence of good character. (Abbott’s Tr.

The nature of the action and the facts, so far as material, are stated in the opinion. The court, having found an unauthorized breach of an express contract, should have awarded plaintiff at least nominal damages instead of dismissing the complaint, and this error, affecting as it does a substantial right, calls for a reversal. (Billings v. Vanderbeck, 23 Barb. 546; Douglass v. Hobe, 36 App. Div. 638; Pryor v. Foster, 130 N. Y. 171; Coppola v. Kraushaar, 102 App.

The facts, so far as material, are stated in the opinion. The word “ convicted ” in article 2, section 2, of the Constitution means the judgment of the court; the sentence imposed by the court is the judgment; there having been no sentence here, there was no judgment; therefore, no conviction. (People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 283; People v. McGloin, 91 N. Y. 241; Blaufus v. People, 69 N. Y. 107; People v. Sullivan, 34 App.

The facts, so far as material, are stated in the opinion. The defendant did not advertise to practice medicine within the meaning of the act. (S. E. M. Inst. v. State, 103 N. W. Rep. 1078; S. E. M. Inst. v. Platner, 103 N. W. Rep. 1079; Underwood v. Soott, 32 Pac. Rep. 942; People v. Allcutt, 117 App. Div. 546.) It was not the intention of the legislature to include corporations when it used the word “ person ” in chapter 344 of the Laws of 1907.

Cross-appeals from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 22, 1907, which modified and affirmed as modified an order of Special Term correcting and confirming a report of commissioners of estimate and assessment. This proceeding was instituted by the city of New York to acquire title to certain lands for the straightening and widening of Jerome avenue between Woodla'wn road and Mosholn avenue.

<p><(I). Murder—Evidence—Testimony as to Finding of Weapon at Place Where Defendant Had Been, Shortly After Homicide—When Properly Admitted.</p> <p>It is not erroneous, upon the trial of a defendant charged with murder in the first degree, committed by stabbing the decedent with a knife, to admit evidence that about two weeks after the commission of the crime a knife was found, through the instrumentality of a friend of the defendant, at a place where the latter is admitted to have been the day after the crime was committed, which knife was disposed of by the friend in such a way as to render its recovery impossible, where the knife was shown to have corresponded in pattern and character with one which several witnesses had actually seen in the hands of the defendant at different times prior to the murder.</p> <p>.(2). Same—Not Erroneous to Permit Model of Knife, by Which Crime Was Alleged to Have Been Committed, to Be Used as Exhibit on Trial.</p> <p>Nor is it erroneous to permit a knife to be used as an exhibit and as a model of the knife alleged to have been owned and possessed by the. defendant, where its similarity to the original was vouched for by several witnesses, who swore that it was like the knife which they had seen in the hands of the defendant, and a witness, who testified to the finding of a knife at a place where defendant had been shortly after the homicide, declared that the knife which he found was similar to the exhibit.</p> <p>(3) . Same—Spontaneous Exclamations—Statement of Deceased, Made Immediately After Injury—When Admissible in Evidence.</p> <p>Evidence of a statement of the deceased, made immediately after he was wounded, to the effect that the defendant had stabbed him, is admissible, where the declaration appears to have been made impulsively and as an instinctive outcome of the act, even though subsequent in time to the infliction of the injury. Under the exception to the general rule excluding hearsay evidence, proof of such exclamations is admissible if they are spontaneously expressive of the injured person’s observation of the effects of a startling occurrence and the utterance is made within such limit of time as presumably to preclude fabrication.</p> <p>(4) . Same—Dying Declarations—Preliminary Proof Sufficient to Justify Their Reception in Evidence.</p> <p>Statements made by the deceased, as to the identity of his assailant, are properly admitted in evidence as dying declarations, where it appears that they were made in conjunction with numerous declarations of the deceased to the effect that he was about to die and the proof presents a picture of a man actually dying whose utterances were spoken under a sense of impending death and without hope of recovery, since such evidence constitutes a sufficient foundation for the admission of his statements. While the prosecution must show that the deceased was in actual danger of death and had given up all hope of recovery at the time when his declarations were made, that fact may be proved like any other, and can be inferred from the existing and surrounding circumstances.</p> <p>íS). Same—Admission of Evidence as to Quarrels of Defendant with Third Persons Before the Homicide.</p> <p>Evidence having been properly introduced by the prosecution, as to certain quarrels which occurred between the defendant and the deceased prior to the homicide, it is not error to admit evidence as to disputes occurring at or about the same time between thé defendant and third persons, where the incidents are so connected that it is difficult to present an account of one of them to the jury without disclosing something about the others; and, especially, where it is impossible to perceive how the latter testimony could have possibly injured the defendant.</p> <p>(6). Same—Premeditation and Deliberation—Sufficiency of Evidence.</p> <p>The evidence as to premeditation and deliberation, examined and, although meagre on the subject of motive, held sufficient to warrant the submission of the question to the jury and to sustain a verdict of conviction.</p>

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

<p>1. Negotiable Instruments — Irregular Indorser op Bill op Exchange. A person who signs his name in blank, before delivery, upon the hack of a draft, payable to the drawer, which has been accepted ■by the drawee, is an indorser of such draft within the meaning of section 113 of the Negotiable Instruments Law (L. 1897, cb. 612), which provides that a person who places “bis signature upon an instrument otherwise than as a maker, drawer or acceptor, is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.”</p> <p>2. Same — Presumption as to Liability op Indorser—Admission of Parol Evidence to Show Intention of Indorser. Prior to the enactment of the Negotiable Instruments Law (L. 1897, ch. 612) it was the rule in this state that a person who put his name on the back of a bill or note before its delivery was presumably a second indorser and not liable to the payee, but the presumption could be rebutted by parol evidence to show that the intention of the indorser was to become surety for some prior party to the instrument. By section 114 of the Negotiable Instruments Law, defining the liability of an irregular indorser, the presumption as formerly established was changed and an irregular indorser is now presumed to he liable in accordance with the express language of that statute. There is nothing in the law, however, to indicate an intention on the part of the legislature to change the former rule relating to the receipt of parol evidence to determine the primary liability as between the persons whose names appear upon the instruments or as between those secondarily liable thereon.</p> <p>3. Same — When Parol Evidence Admissible under Negotiable Instruments Law. Under section 55 of the Negotiable Instruments Law, defining an accommodation indorser and providing as to his liability, parol evidence is necessary to determine whether a party to an instrument, including an indorser thereon, is an accommodation party, and also to determine which other party to the instrument he had accommodated. In an action to charge an indorser of a draft with the amount thereof, on the ground that his indorsement was for the benefit of the acceptor, the admission of such evidence is not prevented by the fact that section 114 of said law, defining the liability of an irregular indorser, does not include a provision to the effect that, if the indorser signed for the accommodation of the acceptor, he is liable to all parties subsequent thereto.</p> <p>4. Same — Parol Evidence Admissible under Negotiable Instruments Law, to Determine Liability as Between Maker and Indorser of Draft. Upon the acceptance of a bill, the acceptor becomes the principal debtor primarily liable to pay the amount thereof, and all other parties to the instrument, including the maker and indorser, are secondarily liable. The maker, therefore, is an indorser, in legal effect and within the intention of section 118 of the Negotiable Instruments Law, providing that, “as respects one another, indorsers are liable prima facte in the order in which they indorse; but evidence is admissible to show that as between or among themselves they have agreed otherwise,” Parol evidence is, therefore, authorized as between the maker and an indorser of such a bill for the purpose of determining their respective liability.</p> <p>5. Same — Parol Evidence Admissible, under Negotiable Instruments Law, to Overcome Presumption Arising from Position of Indorsement on Draft, In an action, therefore, brought by the drawer of certain drafts to charge an indorser thereon with their amount, in which the complaint alleges that the bills were so indorsed for the accommodation of the acceptors thereof and for the purpose of giving such acceptors credit with the drawer, parol evidence is properly received to affect or overcome the presumption arising, under section 114 of the Negotiable Instruments Law, from the position of the indorser’s name upon the bills. It cannot be considered to have been the intention of the legislature, by the enactment of such section, to establish a rule as to the liability of an irregular indorser conclusive on the parties to the instrument as between themselves in an action where facts showing a different intention are fully alleged.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 1, 1908, which modified and affirmed as modified an order of Special Term combining and determining three separate special proceedings, removing a committee of the estate of Blanche L. Andrews, an incompetent person, appointing a successor to such committee, granting incidental relief and terminating two other special proceedings in which no hearing had been had.</p> <p>In October, 1904, John Notman, John E. Boosevelt and Constant A. Andrews were appointed committee of the estate of Blanche L. Andrews, who liad been judicially declared to be incompetent to manage herself and her affairs. Constant A. Andrews was also appointed committee of her person. Jolin.E. Roosevelt was the husband of Nannie Y. Roosevelt, the only sister of Blanche L. Andrews, the incompetent person. Constant A. Andrews was the husband of the incompetent. Mr. Andrews and Mrs. Boosevelt were the only persons interested in the estate of the incompetent as heirs at law, next of kin or otherwise. The value of the estate was about $370,000. The persons appointed committee of the estate duly qualified and entered upon their duties as such. Mr. Notman died on January 6tli, 1907, and no person has been appointed in his place.</p> <p>In November, 1906, the incompetent Blanche L. Andrews, by Constant A. Andrews, her husband, instituted a special proceeding in the Supreme Court by petition praying for a settlement of the accounts of the committee of her estate and asking that a trust company be substituted as such committee. This for convenience may be denominated proceeding No. 1, or the substitution proceeding.</p> <p>At about the same date Mr. Notman and Mr. Roosevelt (Mr. Andrews refusing to join in the proceeding) petitioned the court for a judicial settlement of the estate (Proceeding No. 2, or accounting proceeding).</p> <p>On Nov. 15th, 1906, Mrs. Nannie V. Roosevelt began a proceeding for the removal of Mr. Andrews as committee of the person of the incompetent (Proceeding No. 3, or Andrews removal proceeding).</p> <p>The petitions in these three several proceedings coming before the court at or about the same time, each proceeding was by a separate order referred to the same referee to take proof of the facts and report.</p> <p>At the beginning of the reference the parties stipulated that the proceedings should be known as Nos. 1, 2 and 3; No. 1 being the petition of Mr. Andrews individually, and on behalf of Blanche L. Andrews for the substitution of a 'trust company as committee of the estate; No. 2 being the application for an accounting on the petition of Mr. Notman and Mr. Roosevelt; and No. 3 being the application for the removal of Mr. Andrews as committee of the person on the petition of Mrs. Roosevelt. It was further stipulated that the referee should first take up the accounting proceeding brought by Mr. Notman and Mr. Roosevelt as members of the committee of the estate; next the proceeding instituted by Mrs. Andrews for the substitution of a trust company ; and lastly, the proceeding upon the petition of Mrs. Roosevelt for the removal of Mr. Andrews as committee of the person. Evidence was accordingly taken in the accounting proceeding, and on July 24, 1907, the referee filed his report therein approving the account in all respects and overruling all objections to the same. Mo testimony whatever was taken in the substitution proceeding or the Andrews removal proceeding.</p> <p>Meantime two other proceedings had been instituted. In one of these Mr. Andrews petitioned the court for an order directing the committee of the estate to reimburse him for certain expenditures which he claimed to have incurred as committee of the person. This is known as proceeding Mo. 4, or payment of bills proceeding. In the other Mr. Andrews sought a modification of a previous order of the court regulating the visits which should he made to the incompetent, and containing directions in regard to her place of abode (Proceeding Mo. 5, or modification proceeding). When these two last-mentioned proceedings came on for hearing at Special Term, orders were made in each by consent of the parties, referring then! to the same referee before whom the first three proceedings were pending to take proof and report forthwith. The referee heard the testimony in both and filed his reports therein on July 24, 1907, recommending that the bills involved in proceeding Mo. 4 be paid, and that the prayer of the petition in proceeding Mo. 5 in regard to the place of abode o£ the incompetent be granted. As already stated, the report in the accounting proceeding had been filed on the same date, and these three reports were brought before the Special Term for confirmation on July 26tli, 1907. Mo reports or testimony in proceeding Mo. 1 (the substitution proceeding) or proceeding Mo. 3 (the Andrews removal proceeding) were brought before the court at that time nor were the petitions or papers in these proceedings regularly submitted to it.</p> <p>On Movember 8th, 1907, the court made an order after reciting the various proceedings above mentioned, affirming the report of the referee in the account proceeding (Mo. 2) and also his report in the payment of bills proceeding (Mo. 4) but disapproving the recommendation contained in the report in the modification proceeding (Mo. 5). The same order directed that the reference in proceedings Mo. 1 and Mo. 3 in which no testimony had been taken, should be terminated; removed the two surviving members of the committee of the estate; and. appointed a stranger in their stead as committee of the estate.</p> <p>Upon appeal to the Appellate Division that court struck out the portion of the Special Term order which assumed to terminate proceeding No. 3 instituted by Mrs. Roosevelt to procure the removal of Mr. Andrews as committee of the person. It also modified the Special Term order in some respects not material to be considered upon this appeal. In all other respects the order of the Special Term was affirmed but by a divided court.</p> <p>John E. Roosevelt and Nannie Y. Roosevelt have taken separate appeals to this court from the portions of the order of the Appellate Division, but have presented for review' in this court only so much thereof as affirms the action of the Special Term in removing the committee of the estate and appointing a new committee and so much thereof as affirms that part of the Special Term order which combined three proceedings and determined them in one order.</p> <p>The order removing John E. Roosevelt was without authority. (Elias v. Schweyer, 13 App. Div. 336; Matter of Livingston, 34 N. Y. 555; Matter of Osborn, 74 App. Div. 113; Matter of Arnold, 76 App. Div. 126; Matter of Wetmore, 113 App. Div. 232; Matter of Burr, 118 App. Div. 483; Matter of Bischoff, 80 App. Div. 327; Wood v. Brown, 34 N. Y. 343; Matter of Osborn, 74 App. Div. 113.) Notice should have been given to the next of kin of an intention to remove and appoint a substituted committee. Especially should there be some examination or consideration as to the fitness of a person proposed. (Matter of Osborn, 74 App. Div. 113; Woerz v. Schermerhorn, 161 N. Y. 530; Elias v. Schweyer, 13 App. Div. 336; Matter of Wetmore, 113 App. Div. 232; Matter of Page, 7 Daly, 155; Ex parte Le Heup, 18 Ves. 221; Matter of Taylor, 9 Paige, 611.) Even if the judge who made the order had had jurisdiction or the power to make an order of removal the order was an improper exercise of that power and should be reversed. (Burt v. Burt, 41 N. Y. 46; Quackenboss v. Southwick, 41 N. Y. 117; Matter of Waterman, 112 App. Div. 313; Matter of Theriot, 117 App. Div. 686; Matter of Burr, 118 App. Div. 482.)</p> <p>The appointment of Sylvester J. O’Sullivan as substituted committee was unauthorized and void. (Matter of Osborn, 74 App. Div. 113; Woerz v. Schermerhorn, 161 N. Y. 530; Elias v. Schweyer, 13 App. Div. 336; Matter of Wetmore, 113 App. Div. 232; Matter of Lamoree, 32 Barb. 122.)</p> <p>The Supreme Court has jurisdiction over the person and property of incompetents. (Petrie v. Schumacher, 24 Wend. 85; Matter of Chapman, 43 App. Div. 231; A. Ins. Co. v. Barnard, 96 N. Y. 525.) The court at all times has jurisdiction of the person of the committee. (Matter of Hopper, 5 Paige, 489; Petrie v. Schumacher, 24 Wend. 85; People v. Com. of Taxes, 100 N. Y. 215; Matter of Otis, 101 N. Y. 580; Carterer v. Beckwith, 128 N. Y. 312; Pharis v. Gere, 110 N. Y. 336; Matter of Strasberger, 132 N. Y. 128; Stokes v. Hoffman House, 167 N. Y. 554; Tollman v. Hinman, 10 How. Pr. 90; Young v. Bloomer, 22 How. Pr. 332; Bowman v. De Peyster, 2 Daly, 206.) The proceedings before Mr. Justice Dayton were regular. All persons interested were properly before the court upon notices and cross-notices. And assuming that it was necessary for the court to have something before it upon which to base the exercise of its discretion in removing the committee, the matters appearing before it afforded abundant foundation upon which to base the exercise of such discretion. (A. Ins. Co. v. Barnard, 96 N. Y. 525; Matter of Chapman, 43 App. Div. 231; May v. May, 167 U. S. 310; Matter of Osborn, 74 App. Div. 113.) The power to remove the committee being vested in the discretion of the Supreme Court, and that court not having exceeded its jurisdiction or abused its discretion, its order is not reviewable here, and the appeal should be dismissed. (Foote v. Lathrop, 41 N. Y. 361; Wade v. Delair, 63 N. Y. 319; Wallace v. Castle, 68 N. Y. 373; People v. I. Ry. Co., 177 N. Y. 296; People v. Sternberger, 153 N. Y. 684; Merriam v. W. & P. L. Co., 155 N. Y. 136; Ousterhoudt v. Ousterhoudt, 168 N. Y. 358; Matter of Tuttle v. I. Nat. Bank, 170 N. Y. 9.)</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 28, 1906, which affirmed a judgment of the Monroe County Court rendered upon a verdict convicting the defendant of the crime of abortion.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 17, 1908, which reversed an order of Special Term granting a motion for an injunction pendente lite restraining the defendants from consummating a proposed merger of the defendant corporations. The following questions were cértified: “ 1.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 22, 1907, which affirmed an order of the Nassau County Surrogate’s Court assessing a transfer tax upon the estate of Sidney D. Ripley, deceased.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 24, 1908, which affirmed an interlocutory judgment of Special Term sustaining a demurrer to an alternative writ of mandamus. - The following questions were certified: “1.

<p>Motion for order directing the state board of law examiners to allow the petitioner to qualify and be examined under the rules relating to the admission of attorneys.</p>

Appeal in each of the above-entitled actions from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 8, 1907, which reversed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granted a new trial in an action to set aside a transfer of. trade marks on the ground of fraud.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 20, 1907, which reversed an order of the Jefferson County Court denying a motion of the respondent herein to reopen the final accounting of the appellant herein as assignee of Wallace G. Northam, and permit such respondent to present a claim for the amount of a judgment recovered in an action to which such assignee was a party and granted…

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 23, 1908, which reversed an interlocutory judgment of the Municipal Court of tho city of New York overruling a demurrer to the complaint and sustained such demurrer in'an action to recover on a policy of indemnity insurance. The following question was certified : “ Does the complaint state facts sufficient to constitute a cause of action ? ”

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 22,1907, which affirmed an order of Special Term confirming the report of commissioners of estimate and assessment in the above-entitled proceeding.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 26, 1908, which reversed a judgment of Special Term construing the will of Charles G. Stachelberg, deceased, so as to hold that his posthumous child was specially mentioned in and thereby excluded from any participation in the estate of the deceased. The following questions were certified : “First.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 18, 1907, affirming a judgment in favor of defendant entered upon the report of a referee in an action to recover an assessment upon corporate stock alleged to be held by the defendant for the purpose of paying debts of the corporation.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 19, 190J, modifying and affirming as modified a judgment in favor of plaintiff entered lipón a decision of the court on trial at Special Term in an action to recover for an alleged breach of a contract to convey real property and for the foreclosure of a vendee’s lien.</p>