Volume 193 — New York Reports

On the 21st of December, 1905, the defendant was convicted of the crime of perjury, alleged to have been committed under the following circumstances: On the 3rd of January, 1905, he was sworn as a witness in his own behalf upon the trial of an action brought by him against the Metropolitan Street Bailway Company to recover damages which he alleged he had sustained through its negligence.

<p>. Appeal from a judgment o'f the Appellate Division of the Supreme Court in the fourth judicial department, entered June 4, 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>It was error on the part of the trial justice to exclude under the provisions of section 834 of the Code of Civil Procedure the testimony of Dr. Fred J. Douglass, a witness called by the defendant. (Morris v. N. Y., O. & W. R. R. Co., 148 N. Y. 92; Matter of Coleman, 111 N. Y. 220; Rosseau v. Bleau, 131 N. Y. 177; Haack v. Weicken, 118 N. Y. 77; 89 App. Div. 508; McKinney v. G. S. Ry. Co., 104 N. Y. 353; Powers v. M. S. Ry. Co., 105 App. Div. 358; Clifford v. D. & R. G. R. R. Co., 188 N. Y. 350; Parker v. Board of Supervisors, 106 N. Y. 398; Drake v. Page, 127 N. Y. 574; People v. Sutherland, 154 N. Y. 355 ; Snowden v. Town of Somerset, 171 N. Y. 106; People v. Koerner, 154 N. Y. 355; Griffiths v. M. S. R. R. Co., 171 N. Y. 110.)</p> <p>There was no error in excluding testimony of Dr. Fred J. Douglass as to the operation at the hospital. (Nelson v. Vil. of Oneida, 156 N. Y. 223; Jones v. B., etc., R. R. Co., 3 N. Y. Supp. 253; 121 N. Y. 683; Dambmann v. M., etc., Co., 55 Misc. Rep. 66; Feeney v. L. I. R. R. Co., 116 N. Y. 380; Meyer v. Knights of Pythias, 178 N. Y. 63; Morris v. N. Y., O. & W. R. R. Co., 148 N. Y. 95.) Had testimony by Dr. Fred J. Douglass been admissible, it would only have been cumulative evidence, and the exclusion of cumulative evidence is not reversible error. (People v. Superior Court, 10 Wend. 285; Powell v. Jones, 42 Barb. 24; G., etc., R. R. Co. v. Sage, 35 Hun, 95; Sayre v. King, 21 App. Div. 625; Shute v. Jones, 24 N. Y. Supp. 637; White v. Town of Ellisburg, 18 App. Div. 514; Laing v. Rush, 50 N. Y. S. R. 351; O'Hara v. N. Y. C. & H. R. R. R. Co., 92 Hun, 56; Cullen v. Gallagher, 15 Misc. Rep. 146; People v. Gonzalez, 35 N. Y. 59 ; Page v. Ellsworth, 44 Barb. 640; Forest v. Forest, 25 N. Y. 510.)</p>

The facts alleged by the plaintiff in her complaint are in substance as follows : In 1875 George W. Kidd entered into an ante-nuptial agreement with Anna Estelle Slocum, whereby in consideration of the sum of $40,000 advanced to him by her to be used in the business he was then carrying on, he agreed to marry her and to adopt her daughter, the. plaintiff in this action.

Three persons doing business under the firm name of E. V. Babcock & Co., at Pittsburg, Pa., were depositors in the Federal National Bank of that city. One Pennock was the auditor and chief bookkeeper and known by said hank to be in the employ of said firm.

The nature of the action and the facts, so far as material, are stated in the opinion. The Lien Law does not purport to regulate the disposition of the proceeds of a building loan. (L. 1897, cli. 418, § 21.) The learned justice at Special Term erred in deciding, as matter of law, that the true agreement between the title company and Forgotston was never filed. (Thomas v. Scutt, 127 N. Y. 133; Case v. Bridge Co., 134 N. Y. 78; House v. Walch, 144 N. Y. 418; Stowell v. Ins.

<p>[(I.) Confessions—Preliminary Examination on Admissibility Thereof —Rights of Defendant.</p> <p>Where the prosecution produce a witness to prove an alleged confession of a defendant charged with a crime, the latter may show, either by preliminary cross-examination of the proposed witness or by other evidence, that the confession was secured by improper means, and after the production of such testimony he is entitled to a preliminary ruling by the court on the admissibility of the alleged confession.</p> <p>(2.) Preliminary Examination—Jury Need Not Be Excluded Therefrom.</p> <p>The court is not required to exclude the jury from such a preliminary examination,' and, therefore, a request for a preliminary examination, “ in the absence of the jury,” might properly be denied as too broad.</p> <p>(3.) Same—Erroneous Denial of Request for Preliminary Examination—When Harmless.</p> <p>Where a witness, called to prove an alleged confession of the defendant, corroborated the evidence of a previous witness as to the legal character of the confession, and his direct examination affirmatively excluded the possibility that he knew of any act by which the confession was improperly induced, and, in addition, his cross-examination developed no conditions which would have warranted the trial judge in excluding the confession, a prior error of the court in denying a request for a preliminary examination of the witness will be disregarded on appeal as harmless.</p> <p>,(4.) Same-Evidence of Confessions—Objections Thereto.</p> <p>Where a witness who had testified to a confession of the defendant and had not either on his direct or cross-examination disclosed any fact or condition which would have warranted the exclusion of the confession, an objection to his testimony, as a witness to a second confession, on the ground that it was a violation of the constitutional right, of the defendant that he should not be required to testify against himself, does not fairly raise the question of defendant’s right to a preliminary examination of the witness upon the admissibility of the proposed evidence.</p> <p>(5.) Same—Denial of Request for Preliminary Examination.</p> <p>Where defendant’s counsel asked for a preliminary examination of a witness called to prove an alleged confession, and the court stated that he would permit the examination if counsel claimed that there were any threats or promises made or held out to the defendant sufficient to make the proposed evidence incompetent, and defendant’s counsel declined to make any statement on that subject, a denial of the request for the preliminary examination was not erroneous.</p> <p>(6.) Same—Preliminary Examination—Independent Evidence as to Admissibility of Confessions.</p> <p>If a defendant on a criminal trial has independent witnesses or evidence of his own as to the character of certain alleged confessions about to be proved by the prosecution that he wishes to produce before the evidence of such confessions is received, he should make such fact plain to the court, and, where he fails so to do, he cannot be heard to complain on appeal that he was deprived of an opportunity to produce such witnesses or evidence.</p> <p>(7.) Same—Trial for Murder—Preliminary Examination of Witnesses to Confessions—When Eights of Defendant Fully Protected.</p> <p>The record of proceedings on the trial of a defendant indicted for murder, in which the prosecution introduced evidence of alleged confessions, and in which, it is claimed on behalf of defendant, that he was deprived both of the opportunity to cross-examine the people’s witnesses and to produce independent evidence for the purpose of impeaching the alleged confessions, examined and held, that the rights of the defendant were fully protected, especially where, although it is difficult to say that any issue of fact was raised in regard to the character of the confessions and the circumstances that surrounded them, the court submitted the question whether the confessions were made under such circumstances as entitled them to be considered.</p> <p>(8.) Same—Confessions—May Be Considered as Evidence of Crime Charged—Corroborating Evidence.</p> <p>Under the statutes which respectively provide that “ No person can be convicted of murder * * * unless * * * the fact of killing by the defendant, as alleged,” is established as an independent fact “beyond a reasonable doubt” (Penal Code, § 181), and also that “a confession of a defendant * * * is not sufficient to warrant his conviction, witjiout additional proof that the crime charged has been committed” (Code Grim. Pro., § 395), such confession may be-considered in establishing the commission of the crime, and where there is additional evidence which reasonably tends to prove the crime and thus correborates the confession, such evidence is sufficient to satisfy the requirements of the statute, although the evidence in itself and independent of the confession, would be insufficient to establish the crime.</p> <p>{9.) Same—Sufficiency of Evidence to Sustain Conviction fob Murder.</p> <p>The evidence on the trial of a defendant indicted for murder examined and held, that certain alleged confessions were made by him under such circumstances as entitled them to be proved in the case; that they were corroborated by additional evidence, as required by the statute, and that such confessions and additional proof together established the commission of the crime charged beyond any reasonable doubt so as to sustain a judgment of conviction.</p> <p><10). Same—Good Character—Request to Charge—When Properly Denied.</p> <p>A defendant on a criminal trial is not entitled to have the court charge a presumption of good character in the absence of any evidence. On a trial for murder, therefore, where defendant has introduced testimony of doubtful weight as to his previous good character, a request to charge that his character should be considered good by the jury, “ especially in the absence of proof * * * to the contrary,” is properly denied, since to so charge would withdraw the consideration of the evidence on the subject from the jury.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to hold that the sums that might have been received as rent for the property had the Jarvis claims never been made, were the proper measure of the damages to which the plaintiff was entitled for the defendant’s failure to put him in possession of the property at the time agreed upon.

The facts, so far as material, are stated in the opinion. The plaintiff is affected by the prohibition of chapter 10, Laws of 1860, against building railroads in the city of New York.

The plaintiff has recovered damages against the defendant for the alleged conversion of ten bonds which were each of the par value of $1,000. The judgment appealed from represents their face value with interest. On the- 15th day of September, 1886, the board of directors of the Medina Gas Light Company adopted a resolution authorizing the corporation to borrow $10,000 upon its ten bonds to be issued.

The facts, so far as material, are stated in the opinion. The fact that, subsequent to the commencement of this proceeding and the vesting of title in the city, the lessee relinquished to the owners any claim for the award to the bulkhead proper does not affect its right to recover for depreciation in the value of its fixtures. (W. F. L., H. d¿¡ P. Go. v. Feed, 47 Mise.

<p>Audit—Tax—Action of Board of Supervisors upon Claim for Refund of Taxes under Section 256 of the Tax Law (L. 1896, Ch.‘908) — When Final—Laches by Claimant. Where a board of supervisors, directed in a certiorari proceeding to refund an excess of taxes paid on an overvaluation of relator’s property, took the matter under consideration, upon relator’s petition, and determined to repay the excess of state, county and town taxes, but denied a refund of the excess of school and highway taxes, and the relator accepted the award and apparently acquiesced therein for a period of three years and then applied to the board of supervisors for a refund of the excess of school and highway taxes, which the board again denied, the action of the board is final, until reversed or set aside, and the relator is not entitled to a writ of mandamus directing the board to repay the excess of school and highway taxes. Moreover, by treating the action of the board of supervisors as an audit, accenting benefits thereunder and acquiescing therein, the relator has given a practical construction to the meaning and effect of the orders made in the certiorari proceeding which it should not now be permitted to repudiate.</p>

The facts, so far as material, are stated in the opinion. The petitioner was not a physician and, therefore, was not entitled to be registered in the bureau of records of the board of health of the city of Hew York under the provisions of section 160 of the Sanitary Code. (People ex rel. P. C. S. Bank v. Cromwell, 102 N. Y. 481; Matter of Smith v. Board of Supervisors, 148 N. Y. 187; People ex rel. Corrigan v. Mayor, etc., 149 N. Y. 215; People ex rel.

The nature of the action apd the facts, so far as material, are stated in the opinion. The policy must be reasonably construed; there is no ambiguity or uncertainty in the language and the rule that a policy should he interpreted strictly against the insurer is inapplicable. (Nelson v. T. Ins. Co., 181 N. Y. 472; Allen v. G. A. Ins. Co., 123 N. Y. 6; Peabody v. Satterlee, 166 N. Y. 174; I. F. Ins. Co. v. Coos Co., 151 U. S. 452 ; D. Ins. Co. v. Greer, 120 Fed.

The facts, so far as material, are stated in the opinion. There is no legal identity between the contract abandoned by Flanagan and that let to the present relator. (Murphy v. Buckman, 66 N. Y. 297; Gillen v. Hubbard, 2 Hilt. 304; Matter of Leeds, 58 N. Y. 402; McChesney v. City of Syracuse, 75 Hun, 503.) The comptroller was compelled by the Labor Law to refuse the payment in question. (People ex rel. Cossey v. Grout, 179 N. Y. 417; People ex rel.

Cross-appeals from, an order of the Appellate Division of the Supreme Court in the first judicial department, entered December- 6, 1907, which modified and affirmed as modified an interlocutory judgment entered upon the report of a referee adjudging that condemnation of the defendant’s property is necessary for the public use specified in the petition, and affirmed as modified an order confirming the report of commissioners appointed to ascertain the compensation to be paid…

In March, 1902, a petition was presented to the County Court of Westchester county, by a taxpayer of the town of New Castle in that county, praying for the appointment of a commission to determine the necessity for a new highway in that town, pursuant to the provisions of the former Highway Law (L. 1890, ch. 568, §§ 83, 84-98). .A commission was appointed and a decision rendered in favor of the necessity of the proposed highway, the estimated- probable cost of which was…

The nature of the action and the facts, so far as material, are stated in the opinion. The case was submitted to the jury upon a wrong theory and under erroneous instructions from the learned trial justice with regard to the burden of proof. (Curran v. W. C. Mfg. Co., 36 N. Y. 153; Kay v. M. S. R. Co., 163 N. Y. 447; Heinmann v. Heard, 62 N. Y. 448; Freedman v. M. S. R. R. Co., 89 App. Div. 486; Goetz v. M. S. R. R. Co., 54 App. Div. 365; Stern v. W. El. R. R. Co., 99 App.

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to refuse to submit the case to the jury for determination, for the evidence given of the occurrence, with its attendant circumstances, alone, would have justified the jury in finding the defendant negligent. (Griffen v. Manice, 166 N. Y. 188; Green v. Banta, 16 J. & S. 156; 97 N. Y. 627; Mullen v. St. John, 57 N. Y. 571; Solarz v. Manhattan Ry. Co., 8 Misc. Rep. 656; 11 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff cannot maintain this action, having been divested of her title prior to the commencement thereof, and having no estate of reversion or inheritance. (Coke Litt. 53; Jackson v. Browning, 7 Johns. 232; 28 Am. & Eng.

in the first judicial department, entered July 26, 1907, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 1, 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>By the action in the Supreme Court against Dennin, Ormsby and Herrington, based upon the plaintiff’s claim of ownership and right of possession of the property, the plaintiff elected one of two or more inconsistent remedies, and was precluded by such election from maintaining this action. (Westfall v. Peacock, 63 Barb. 209; Morris v. Rexford, 18 N. Y. 552; Conrow v. Little, 115 N. Y. 387; Terry v. Munger, 121 N. Y. 161; Fowler v. Bowery Sav. Bank, 113 N. Y. 450; Roome v. Jenkins, 2 Misc. Rep. 257; Matter of Garver, 176 N. Y. 386; Crossman v. U. R. Co., 127 N. Y. 34; Moore v. Potter, 155 N. Y. 481; Dustan v. McAndrew, 44 N. Y. 72.)</p> <p>Neither the former action brought by the plaintiff against Herrington, Ormsby and Dennin for conspiracy, nor any act of plaintiff subsequent to the execution of the bill of sale, amount to an election of remedies whereby the plaintiff is estopped from maintaining this action. (McNutt v. Hilkins, 80 Hun, 235; Kinney v. Kiernan, 49 N. Y. 169; Empire Mfg. Co. v. Moers, 27 App. Div. 469; Waters v. M. Ry. Co., 66 Hun, 60; Henderson v. Bartlett, 32 App. Div. 439; Marsh v. Masterton, 101 N. Y. 407; Demois v. Mayer, 37 Mo. 617; Matter of Garver, 176 N. Y. 386; Crossman v. U. R. Co., 127 N. Y. 34; Mills v. Parkhurst, 126 N. Y. 84-93; Morrison v. Brand, 5 Daly, 42; 56 N. Y. 657.)</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 5, 1907, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term enjoining the defendant from using pictures or photographs of the plaintiff for purposes of trade or advertising and awarding damages to the plaintiff for injuries sustained by reason of such use of her portrait.</p> <p>The action was brought under the second section of chapter 132 of the Laws of 1903. That statute reads as follows :</p> <p>“ An Act to prevent the unauthorized use of the name or picture of any person for the purposes of trade (Passed April 6, 1903).</p> <p>“ Section 1. A person, firm or corporation that uses for advertising .purposes, or for purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or, if a minor, of his or her parent or guardian, is guilty of a misdemeanor.</p> <p>“ Section 2. Any person whose name, portrait or picture is used within this State for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the Supreme Court of this State against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use, and if the defendant shall have knowingly used such person’s name, portrait, or picture in such manner as is forbidden or declared to be unlawful by this act, the jury, in its discretion, may award exemplary damages.</p> <p>“ Section 3. This act shall take effect September 1st, 1903.”</p> <p>Upon the trial of the action at Special Term the court made the following findings of fact:</p> <p>“ I. That the defendant is a foreign corporation organized under the Laws of the State of New Jersey.</p> <p>“II. That the defendant is engaged in the business of issuing and redeeming trading stamps and at the time this action was begun, and for some time prior thereto, the defendant occupied the premises Numbers 152 to 154 West Twenty-third Street, Borough of Manhattan, The City of New York, and used the same as an office for the exhibition of premiums obtainable upon the surrender of trading stamps issued by the defendant.</p> <p>“ III. That the defendant at the time when this action was begun, and for some time prior thereto, was using, exhibiting and displaying in said office of the defendant, pictures or photographs of the plaintiff in different poses, as premium exhibits and for the purpose of advertising the benefits conferred on the holders of trading stamps issued by defendant and to acquire a larger trade and custom by such use, exhibition and display.</p> <p>“ IV. That the plaintiff has never consented in writing or otherwise to the use, exhibition or display of her picture or photograph.</p> <p>“V. That the plaintiff has suffered damages by the defendant’s use of her picture or photograph as above set forth.”</p> <p>Upon these findings of fact an interlocutory judgment was rendered enjoining the defendant from using the plaintiff’s pictures or photographs for purposes of trade or advertising and directing an assessment of her damages at a Trial Term, where she obtained a verdict of $1,000. The final judgment entered upon this verdict has been unanimously affirmed by the Appellate Division.</p> <p>The statute is unconstitutional, because it requires prior and written consent. (Fisher Co. v. Woods, 187 N. Y. 90; Fosters v. Scott, 137 n. Y. 577; Dexter v. Boston, 176 Mass. 251; Minneapolis Brewing Co. v. McGillivray, 104 Fed. Rep. 258; Prescott v. Hull, 17 Johns. 284; 1 Pars. on Cont. [9th ed.] 249; Van Wyck v. Horowitz, 39 Hun, 237; Marcus Ward & Co. v. Ward, 15 N. Y. Supp. 913; Grossman v. Caminez, 79 App. Div. 15.) The statute is unconstitutional because it takes property without due process of law and unreasonably interferes with the liberty secured by the Constitution. (Roberson v. R. F. B. Co., 171 N. Y. 538; Allgeyer v. Louisiana, 165 U. S. 578; Lochner v. New York, 198 U. S. 45; Foster v. Scott, 136 N. Y. 577; Colon v. Lisk, 153 N. Y. 188; Atkinson v. Doherty, 121 Mich. 372; State v. Robira, 42 La. Ann. 1098; A. M. & B. Co. v. E. Mfg. Co., 137 Fed. Rep. 262; B. G. I. Co. v. Sarony, 111 U. S. 53.)</p> <p>The act deprives persons of their liberty without due process of law in respect of its operation after its passage. (Allgeyer v. Louisiana, 165 U. S. 589; Fisher Co. v. Wood, 187 N. Y. 90; People ex rel. Tyroler v. Warden, 157 N. Y. 116; People v. Jacobs, 98 N. Y. 106; People v. Gillson, 109 N. Y. 389; Murray v. H. L. & L. Co., 18 How. Pr. 272; Plessy v. Ferguson, 163 U. S. 550; St. L. & S. F. Ry. Co. v. Matthews, 165 U. S. 1; G., etc., R. R. Co. v. Ellis, 165 U. S. 150.) The statute deprives persons of property without due process of law because it applies indifferently to pictures made before and after tbp act. ( Wynehamer v. People, 13 N. Y. 378; Matter of Townsend, 39 N. Y. 371; People v. O. C. R. Co., 175 N. Y. 84; People v. Van de Garr, 177 N. Y. 425; People v. Gillson, 109 N. Y. 400.) The statute impaii's the obligation of contracts and is void under the Federal Constitution.' (People v. O. C. R. Co., 175 N. Y. 84.)</p> <p>Chapter 132 of the Laws of 1903 is a constitutional exercise of the police power. (Roberson v. R. F. B. Co., 171 N. Y. 538.)</p> <p>The statute is constitutional. (People v. Cannon, 139 N. Y. 32; Roberson v. R. F. B. Co., 171 N. Y. 538; Klug v. Sheriffs, 109 N. W. Rep. 656.) The statute is not retroactive. (People ex rel. v. Miller, 179 N. Y. 227; N. Y. & O. M. R. R. Co. v. Van Horn, 87 N. Y. 473.) The statute is a valid exercise of the police power. (People ex rel. Armstrong v. Warden, etc., 183 N. Y. 223; Schnaier v. N. H. & I L. Co., 182 N. Y. 83; Wright v. Hart, 182 N. Y. 330.)</p>

The facts, so far as material, are stated in the opinion. There was no perjury because defendant was not lawfully under oath.

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 7, 1908, which affirmed an order of Special Term denying a motion to quash a writ of certiorari to review the proceedings of the defendant in certifying that a petition for the repaving of a certain street was signed by a majority of the resident owners of land fronting thereon.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The certificate of the board of assessors that the application was made by a majority of the owners and that they owned at least two-fifths of the lands fronting on the street is conclusive, and the court has no power to open and re-examine the question. (L. 1891, ch. 105, § 398; Matter of Kiernan, 62 N. Y. 457; Miller v. Amsterdam, 149 N. Y. 288; Matter of Comrs. of Central Park, 50 N. Y. 493 ; City of Denver v. Londoner, 33 Colo. 104; Mansfield v. City of Lockport, 24 Misc. Rep. 25.) A statute prescribing that the determination of an inferior tribunal shall be conclusive is a bar as well to a review by a common-law certiorari as by any other proceeding for review and correction of error. (People ex rel. v. Betts, 55 N. Y. 600; People ex rel. Miller v. Peck, 73 App. Div. 89; People ex rel. Graveline v. Hahn, 59 App. Div. 314.) The statute prescribing that the assessors’ certificate shall be conclusive is a bar to a review of alleged errors of law and the words “ as to the facts ” following the word “ conclusive ” in no way limit or qualify the force and effect of that word. (Matter of Comrs. of Central Park, 50 N. Y. 496 ; Matter of Canal da Walker Sts., 12 N. Y. 406 ; Hiles v. Fisher, 144 N. Y. 306.)</p> <p>The action of an inferior tribunal or quasi judicial board may be reviewed by the Supreme Court by common-law writ of certiorari upon questions of law, even in cases where the statute has declared such action to be final and conclusive. (Lawton v. Comrs. of Cambridge, 2 Caines, 179; Leroy v. Mayor, etc., 20 Johns. 430; Ex parte Mayor, etc., 23 Wend. 287; Matter of Canal & Walker Sts., 12 N. Y. 406; People ex rel. v. Freeman, 3 Lans. 148; People ex rel. Seymour v. Canal Board, 7 Lans. 221; People ex rel. O’Reilly v. Common Council, 53 App. Div. 68; People ex rel. Kilmer v. McDonald, 2 Hun, 70; People ex rel Yonger v. Allen, 52 N. Y. 538; Matter of Fitch, 147 N. Y. 334.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 9, 1908, which affirmed an interlocutory judgment of Special Term sustaining a demurrer to the answer. The following question was certified: “ Does the complaint set forth facts sufficient to constitute a cause of action ? ” The nature of the action and the facts, so far as material, are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 10, 1908, which affirmed an interlocutory judgment of Special Term sustaining a demurrer to three defenses separately set up in the answer. The questions certified are whether these defenses, respectively, are sufficient in law on the face thereof.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the-first judicial department, entered June 25,1907, affirming a judgment in favor of defendants 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 charge of the court is so full of errors that the judgment based upon it must be reversed. (Meeker v. Meeker, 84 App. Div. 111; Patterson v. Rathjins, 11 N. Y. Supp. 322; Cushing v. M. S. Ry. Co., 92 App. Div. 510; Snead v. Bonnell, 49 App. Div. 330.) Sayles was never legally arrested. (People ex rel. Hammond v. Breen, 44 Misc. Rep. 375; People v. Hochstein, 76 App. Div. 25; People ex rel. Farley v. Crane, 94 App. Div. 397.) The police authorities had no right to take the paper from possession of the plaintiff at any time. (Clasen v. Morrison, 47 N. H. 482; Code Crim. Pro. § 172.)</p>

This action was brought to fix the amount due the plaintiff upon a bond given by John H. Brett, as principal, and his sureties, five in number, to secure the faithful discharge by him of the duties of his office as receiver of taxes and assessments of the city of Mount Vernon; to establish the same as a lien upon certain real property belonging to the obligors when the bond was filed, and to foreclose the same.

The action was brought to recover the sum of $5,133.97, being the balance with interest and costs paid by the respondents on a certain note of the High Falls Sulphite Pulp and Mining Company which had been indorsed by the parties to this action, and recovery was had by virtue of a promise made by the appellant to pay said balance. It is now claimed that such promise was without consideration.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 7,1907, which reversed a judgment in favor of plaintiffs entered upon a verdict, and an order denying a motion for a new trial and granted a new trial.</p> <p>The plaintiffs brought this action to recover from the defendant the damage occasioned to them by the alleged negligence of the latter in erroneously transmitting to them a telegraphic message. The plaintiffs, being manufacturers of beef bags, in the city of New York, received from Armour & Company, of Chicago, a letter, asking the lowest “ ¡Drice on 25,000 sets of bags,” and they replied that they would telegraph them a price at a later time. The plaintiffs then requested the Cannon Manufacturing Company, of Concord, North Carolina, as they allege, “ to send them by wire the price for 200,000 yards each of the narrow and wide light beef cotton goods.” On July 27,1903, they received through the defendant a telegram from Concord, addressed to them ; which read : “Delivered commencing about August fifteenth light narrow two eighth wide three eighth net,” and was signed “ Cannon Mfg. Co.” Thereupon and on the same day, the plaintiffs telegraphed and wrote to Armour & Company a price, which was based on the quotations of the Cannon Manufacturing Company, as they were given in the telegram. Armour & Company, the same day, telegraphed, in reply, an order for the bags and the order was entered by the plaintiffs. On July 28th, plaintiffs ordered, by telegram, from the Cannon Manufacturing Company 175,000 yards of the narrow and 150,000 yards of the wide cloth and, at the same time, wrote a letter to the company confirming the telegram. On July 29tli, plaintiffs received a letter from the Cannon Manufacturing Company, inclosing a copy of the telegram, which it had delivered to the defendant, and it then appeared that the message should have read: “ Deliveries commencing about August fifteenth light narrow two eighty wide three eighty net.” The difference between the telegraphic message, as delivered to the defendant, at Concord, and as it was received by the plaintiffs, at New York, was that the word “ deliveries ” had become changed to “ delivered ” and that the two words “ eighty ” had become “ eighth.” It was shown that these quotations, which might not be very intelligible to the ordinary person, are well understood in the trade. The mistake' made in the transmission of the quotations affected the contract made by the plaintiffs with the Armour Company and caused a loss to them in the transaction. The plaintiffs endeavored to procure a cancellation of the contract with the Armour Company, by reason of the mistake in the telegram from the Cannon Manufacturing Company, upon which it had been based; but they were unsuccessful. The Cannon Manufacturing Company refused to assume the liability for the mistake. The damages demanded in the complaint were in the amount of the loss to the plaintiffs on the Armour contract. The telegram from the Cannon Manufacturing Company was written upon one of defendant’s blank forms, which read: “ Send the following message subject to the terms on back hereof, which are hereby agreed to.” That was followed by the plaintiffs’ address, the quotations of prices and the signature of the Cannon Manufacturing Company. Below were the words: “ Read the notice and agreement on back.” One of the terms of the agreement, referred to, reads as follows: “ To guard against mistakes or delays, the sender of a message should order it repeated ; that is, telegraphed hack to the originating office for comparison. For this one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this Company, that said Company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any bneepeated message, beyond the amount received for sending the same.” There was, also, a stipulation limiting the liability of the telegraph company in the case of a repeated message, unless specially insured in accordance with a- provision for such insurance.</p> <p>The defense of the defendant, beyond a denial of the negligence alleged with respect to the transmission of the telegram from Concord, was based upon the terms of the contract between it and the sender of the message. There was no evidence of negligence in the transmission of the message, other than in the changes made in the message between its delivery to the defendant and its receipt by the plaintiffs. There was evidence that atmospheric and electrical conditions and disturbances might affect the accurate transmission of a telegraph message; although the possibility of such changes being caused thereby in the symbols, or signals, as were effected in this case, was somewhat in dispute upon the evidence of the experts.</p> <p>Motions of the defendant to dismiss the action, at the close of the plaintiffs’ case and at the close of the whole case, were denied and the trial court submitted to the jury the question whether the defendant was guilty of gross negligence in the performance of its undertaking. The court, upon a request of the defendant further to instruct the jury that “ the terms and conditions on the blank * * * are reasonable and valid and constitute a contract between the parties,” ruled that they were' reasonable and valid and constituted a contract between the company and the sender, “ but not with the plaintiffs.” To which ruling the defendant excepted. A verdiet was rendered for the plaintiffs for the amount claimed. Upon appeal to the Appellate Division, that court, by a divided vote of the justices, upon questions of law only, reversed the judgment, which the plaintiffs had recovered, and granted a new trial. The plaintiffs have appealed to this court from the order of reversal.</p> <p>Defendant owed plaintiffs, as addressees, a duty imposed by law, arising out of the exercise of a public franchise, and the terms of the contract between defendant and the sender of the message in question did not relieve defendant from liability for failure to properly perform this duty to the addressees. (Will v. P. T. Co., 3 App. Div. 22; Lowery v. W. U. T. Co., 60 N. Y. 198; Tyler v. W. U. T. Co., 68 Ill. 421; Pearsall v. W. U. T. Co., 124 N. Y. 256; Elwood v. W. U. T. Co., 45 N. Y. 549; Rose v. U. S. Tel. Co., 3 Abb. Pr. [U. S.] 408; Elsey v. P. T. Co., 20 N. Y. S. R. 97; Curtin v. W. U. T. Co., 16 Misc. Rep. 347; Wolfskehl v. W. U. T. Co., 46 Hun, 542; De Rutte v. N. Y. T. Co., 1 Daly, 547.) A public service corporation can limit its liability only by contract and not by notice merely. (Pearsall v. W. U. T. Co., 124 N. Y. 256; Curtin v. W. U. T. Co., 16 Misc. Rep. 347; Will v. P. T. Co., 3 App. Div. 22; Applington v. Pullman Co., 110 App. Div. 250; Jennings v. G. T. R. Co., 127 N. Y. 438.) Plaintiffs made out a prima facie ease of negligence by show ing the error in the transmission of the message. (Pearsall v. W. U. T. Co., 124 N. Y. 250; Tel. Co. v. Griswold, 37 Ohio St. 301; Tyler v. W. U. Tel. Co., 60 Ill. 421; Bartlett v. W. U. T. Co., 62 Me. 209; Julian v. W. U. T. Co., 98 Ind. 327; Turner v. H. T. Co., 41 Iowa, 458; Tel. Co. v. Crall, 38 Kan. 679; Cogdell v. Tel. Co., 135 N. C. 431; W. U. Tel. Co. v. Du Bois, 128 Ill. 248; W. U. Tel. Co. v. Short, 53 Ark. 434.) The jury were fully justified in finding that defendant was guilty of gross negligence. (Nolton v. W. R. Co., 15 N. Y. 444; M. & S. P. R. R. Co. v. Arms, 91 U. S. 489; Campe v. Weir, 28 Misc. Rep. 243, 245; Reiser v. Met. Express Co., 45 Misc. Rep. 632, 633; Will v. P. T. Co., 3 App. Div. 22; Dixon v. W. U. T. Co., 3 App. Div. 60; N. Y. C. R. R. Co. v. Loakwood, 84 U. S. 357; Hart v. W. U. T. Co., 66 Cal. 579; Stover v. Gowen, 18 Me. 177; New World v. King, 16 How. [U. S.] 470.)</p> <p>The message in question was transmitted- under terms and conditions expressly limiting the liability of the defendant in the event of error to the amount received for transmitting said message, the message being an unrepeated message. (Kiley v. W. U. Tel. Co., 109 N. Y. 231; Breese v. U. S. Tel. Co., 48 N. Y. 132; Bennett v. W. U. T. Co., 18 N. Y. S. R. 777; Riley v. W. U. T. Co., 26 N. Y. Supp. 532; Altman v. W. U. T. Co., 84 N. Y. Supp. 54; Primrose v. W. U. T. Co., 154 U. S. 1; Hart v. W. U. Tel. Co., 36 Cal. 579; Camp v. W. U. Tel. Co., 1 Metc. [Ky.] 164; Birney v. N. Y. Tel. Co., 18 Md. 232; U. S. Tel. Co. v. Gildersleeve, 29 Md. 232.) The terms and conditions on the telegraph blank are binding upon the addressee as well as upon the sender of the message. (Ellis v. A. T. Co., 95 Mass. 226; Findlay v. W. U. T. Co., 64 Fed. Rep. 459; Whitehill v. W. U. T. Co., 136 Fed. Rep. 499; Coit v. W. U. T. Co., 130 Cal. 657; Poteet v. W. U. T. Co., 55 S. E. Rep. 113; Squires v. N. Y. C. R. R. Co., 98 Mass. 239; Brooke v. W. U. Tel. Co., 46 S. E. Rep. 826; Frazier v. W. U. Tel. Co., 78 Pac. Rep. 330; Rawlings v. Bell, 1 C. B. 951; Omrod v. Huth, 14 M. & W. 651.) The sender of the message was requested by plaintiffs to send this particular message, and hence the plaintiffs were the principals, and the sender of the message acted as the agent of the plaintiffs, at the plaintiffs’ request and for the plaintiffs’ benefit, in sending the message sued on, and hence plaintiffs are bound by the terms and conditions. (W. U. T. Co. v. James, 90 Ga. 254; Mannier v. W. U. T. Co., 94 Tenn. 442; Coit v. W. U. T. Co., 130 Cal. 657; Curtin v. W. U. T. Co., 16 Misc. Rep. 348; Aiken v. W. U. T. Co., 5 S. C. 371; De Rutte v. N. Y., etc., T. Co., 1 Daly, 556.) The defendant is not under the obligations of a common carrier, and is not liable as an insurer of the correctness of an unrepeated message. (Schwartz v. A. & P. T. Co., 18 Hun, 157; Breese v. U. S. T. Co., 48 N. Y. 140; Kiley v. W. U. T. Co., 109 N. Y. 231; Ayers v. W. U. T. Co., 65 App. Div. 149; Grinnell v. W. U. T. Co., 113 Mass. 299; W. U. T. Co. v. Carew, 15 Mich. 525.) There was no evidence of gross negligence. (Primrose v. W. U. T. Co., 154 U. S. l; Baldwin v. W. U. Tel. Co., 45 N. Y. 744; Jones v. W. U. Tel. Co., 18 Fed. Rep. 717; Bennett v. W. U. Tel. Co., 18 N. Y. S. R. 777; Breese v. U. S. Tel. Co., 48 N. Y. 132; Young v. W. U. T. Co., 65 N. Y. 163; Kiley v. W. U. T. Co., 109 N. Y. 231; Altman v. W. U. Tel. Co., 84 N. Y. Supp. 54; Ayres v. W. U. Tel. Co., 65 App. Div. 149; Riley v. W. U. Tel. Co., 28 N. Y. Supp. 581.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 12, 1908, which reversed an order of Special Term denying a motion to vacate an order directing the service of a summons by publication and vacated such order. The facts, so far as material, and the questions certified are stated in the opinion. The complaint states a cause of action. (Perry on Trusts, § 166; Story Eq. Juris. §§ 1257, 1265; Pom.

The nature of the action and the facts, so far as material, are stated in the opinion. The town board of the town had ample authority to expend the sum in question, because the money in question is surplus moneys within the meaning of the statute.

The nature, of the action and the facts, so far as material, are stated in the opinion. The referee erred in his first conclusion of law, that the agreement of insurance made with the deféndant was terminated and canceled on the 14th of February, 1902, by reason of the return of the binding slip by the agent of the insured with request to the defendant that the said binder be “ marked off.” (Hickey v. H. F. Ins. Co., 92 Hun, 192; 15 App.

<p>Street Railroads — Defect at Crossing — Negligence. Plaintiff, while crossing a street, stepped upon a worn rail from which his foot slipped into a hole in the crosswalk alongside said rail, and while his foot was caught therein he fell and was injured. Held, that the testimony as to the wearing of the rail was not sufficient to impute negligence to the railroad company in the maintenance of its track, and that the condition of the rail was not the proximate cause of the injury.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The consent is a complete bar to this action. (White v. M. R. Co., 139 N. Y. 19; Foote v. El. R. R. Co., 147 N. Y. 371; Ward v. M. El. R. R. Co., 152 N. Y. 43; Conabeer v. N. Y & El. R. R. Co., 156 N. Y. 482; Mattes v. Frankel, 157 N. Y. 611; Heimburg v. M. R. Co., 162 N. Y. 355; Paige v. S. Ry. Co., 178 N. Y. 113; Storms v. Man. Ry. Co., 178 N. Y. 507; Hindley v. Man. Ry.

The nature of the action and the facts,'so far as material, are stated in the opinion. The plaintiff has not the legal capacity or right to maintain this action as he is not a citizen residing within the village of Glen Park and is not a resident taxpayer within said village. (Code Civ. Pro. § 1925; L. 1872, ch. 161; People ex rel. Rose v. City of Brookline, 69 N. Y. 605; Liddy v. Long Island City, 104 N. Y. 218; 26 Am. & Eng.

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May o, 1908, which reversed an interlocutory judgment of Special Term overruling a demurrer to the complaint, and sustained such demurrer.</p> <p>On February 12th, 1900, the plaintiff and defendant entered into a written contract under which the former was to write and prepare for publication for the latter a series of law books the compensation for which was provided in the contract. After the plaintiff had completed a three-volume work known as “ Clark & Marshall on Corporations,” the parties disagreed. The plaintiff claimed that the defendant had broken the contract by causing the book to be copyrighted in the name of a corporation, which was not a party to the contract, and lie brought this action to recover what he claims to be due him, for an accounting and other relief. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The Special Term overruled the demurrer, but upon appeal to the Appellate Division, that decision was reversed and the demurrer sustained.</p> <p>Those portions of the contract which are germane to the present stage of the controversy are as follows: The plaintiff agreed to write a series of books relating to specified legal subjects; the manuscript furnished by him was to be satisfactory to the defendant; the plaintiff was not to write or edit anything that would interfere with the sale of books to be written by him under the contract and he was not to write any other books unless requested so to do by the defendant, in which latter event he was to be paid $3,000 a year. The contract contained a clause which provided that “ The first party (the plaintiff) agrees to totally abstain from the use of intoxicating liquors during the continuance of this contract, and that the payment to him in accordance with the terms of this contract of any money in excess of $2 per page is dependent on the faithful performance of this as well as the other conditions of this contract. * * * ”</p> <p>In a later paragraph it further recited that, “ In consideration of the above promises of the first party (the plaintiff), the second party (the defendant) agrees to pay to the first party $2 per page, * * * on each book prepared by the first party under this contract and accepted by the second party, and if said first party abstains from the use of intoxicating liquor and otherwise fulfills his agreements as hereinbefore set forth, he shall be paid an additional $4 per page in manner hereinbefore stated.”</p> <p>This was followed by a specification of the method and times of payment in which it was agreed that “ When a completed chapter or completed chapters amounting to not less than 125 pages, to be delivered to the second party each month, are so delivered, the second party shall pay to the first party $2 per page. But he shall not be required to pay more than $250 in any one month prior to the acceptance by him of a completed book. These advance payments are to be made as soon as the completed chapters are delivered as above stated, but if, after such delivery and payment, the manuscript shall not be regarded by the second party as satisfactory, no further payment shall be made until the first party shall have made the same satisfactory to the second party. All payments on account of parts of books are to be treated as payments on account, against the books previously completed and accepted. They are for accommodation of first party only.</p> <p>“ After the publication of any book or books prepared by the first party under this contract, he shall at the end of every six months be entitled to receive, and the second party agrees to pay him, an amount equal to one-sixth of the net receipts from the combined sales of all books which shall have been prepared by the said first party and published by the said second party under this contract, less any and all payments previously made, said first party and all money then due the second party from the first party, until the amount of $6 per page of each book shall have been paid, after which the first party shall have no right, title or interest in said books or the receipts from the sale thereof.”</p> <p>The plaintiff in his complaint alleges completion of the work on corporations and publication thereof by the defendant ; the sale of many copies thereof from which the defendant received large net receipts; the number of pages it contained (3,469), for which he had been paid at the rate of $2 per page, amounting to $6,938; and that defendant has refused to pay him any sum over and above that amount, or any sum in excess of $2 per page. Full performance of the agreement on plaintiff’s part is alleged, except that he “ did not totally abstain from the use of intoxicating liquor during the continuance of said contract, but such use by the plaintiff was not excessive and did not prevent or interfere with the due and full performance by the plaintiff of all the other stipulations in said contract.” The complaint further alleges a waiver on the part of the defendant of the plaintiff’s stipulation to totally abstain from the use of intoxicating liquors, as follows:</p> <p>“ XII. That defendant waived plaintiff’s breach of the stipulation to totally abstain from the use of intoxicating liquors’ during the continuance of said contract; that long prior to the completion of said manuscript on Corporations, and its delivery to and acceptance by the defendant, the defendant had full knowledge and well knew of plaintiff’s said use of intoxicating liquor during the continuance of said contract, but nevertheless acquiesced in and failed to object thereto, and did not terminate the contract on account thereof; that with full knowledge of said breach by the plaintiff defendant continued to exact and require of the plaintiff performance of all the other stipulations and conditions of said contract, and treated the same as still in force, and continued to receive and did receive installments of manuscript under said contract, and continued to make and did make payments to plaintiff by way of advancements and finally accepted and published said manuscript as aforesaid; that at no time during the performance of said contract by the plaintiff did the defendant notify or intimate to the plaintiff that defendant would insist upon strict compliance with said stipulation to totally abstain from the use of intoxicating liquor, or that defendant intended to take advantage of plaintiff’s said breach, and on account and by reason thereof refuse to pay plaintiff the royalty stipulated in said contract; that, on the contrary, and toith full knowledge of plaintiff’s said use of intoxicating liguors, defendant repeatedly avowed and represented to the plaintiff that he was entitled to and would receive said royalty payment, and plaintiff believed and reltiM on said representation, and in reliance thereon con¡tinueal in the performance of said contract umtil the time of the'brekich thereof by the defendant as hereinafter specifically allegedl, and at all times during the writing of said treatise on .corporations, and after as well as before publication thereof \ as aforesaid, it was mutually understood, agreed and ijitended by the parties hereto that notwithstanding plainitiff’s said use of intoxicating liguors he was nevertheless -intitled to receive and would receive said royalty as the sama accrued tinder said contract</p> <p>TJne defendant’s breach of the contract is then alleged 1 which is claimed to consist in his having taken out a copyright upon the plaintiff’s work on corporations in the name of {publishing company which had no relation to the contract, and the relief asked for is that the defendant be compelled to account, and that the copyright be transferred to the plaintiff, or that he recover its value.</p> <p>The appeal is by permission of the Appellate Division and the following questions have been certified to us : 1. Does the complaint herein state facts sufficient to constitute a cause of action ? 2. Under the terms of the contract alleged in the complaint, is the plaintiff’s total abstinence from the use of intoxicating liquors a condition precedent which can be waived so as to render defendant liable upon the contract notwithstanding plaintiff’s use intoxicating liquors? 3. Does the complaint herein allege facts constituting a valid and effective waiver of plaintiff’s non-performance of such condition precedent ?</p> <p>Under the terms of the contract, plaintiff’s total abstinence from the use of intoxicating liquor is a condition precedent which can be waived so as to render defendant liable upon the contract, notwithstanding plaintiff’s use of intoxicating liquor. (Bogardus v. N. Y. L. Ins. Co., 101 N. Y. 328; R. R. Co. v. Brown, 149 Mass. 425; Bettini v. Gye, L. R. [1 Q. B. Div.] 187; Anson on Cont. 369; 7 Am. & Eng. Ency. of Law [2d ed.], 153; Viele v. G. Ins. Co., 26 Iowa, 9; Insurance Co. v. Norton, 96 U. S. 234; Kiernan v. D. C. M. Ins. Co., 150 N. Y. 190; Prentice v. K. L. Ins. Co., 77 N. Y. 483; Titus v. G. F. Ins. Co., 81 N. Y. 410; Dunn v. Steubling, 120 N. Y. 232; Brady v. Cassidy, 145 N. Y. 171.) The complaint alleges facts constituting a waiver of plaintiff’s non-performance of the condition precedent of total abstinence. (Cowenhoven v. Bull, 118 N. Y. 234; Graham v. S. M. Ins. Co., 72 N. J. L. 298; H. L. & A. Co. v. Unsell, 144 U. S. 439; Kiernan v. Ins. Co., 150 N. Y. 190; Titus v. G. F. Ins. Co., 81 N. Y. 410; Goodwin v. Ins. Co., 73 N. Y. 480; Prentice v. Ins. Co., 77 N. Y. 483; Brink v. Ins. Co., 80 N. Y. 108; Ins. Co. v. Norton, 96 U. S. 234; P. Mfg. Co. v. R. G. Co., 110 App. Div. 341.)</p> <p>No waiver of the plaintiff’s breach of the covenant to totally abstain was involved in the defendant’s acceptance of the boolc as written. (Dunn v. Steubling, 120 N. Y. 232; Grannis & Hurd v. Beeves, 72 Hun, 171; Crocker-Wheeler Co. v. Varick, 104 App. Div. 368; Smith v. Brady, 17 N. Y. 173; Organ v. Stewart, 60 N. Y. 413, 420; Crane v. Knubel, 43 How. Pr. 389.) Under the terms of the contract plaintiff’s total abstinence from the use of licpior is the consideration of defendant’s promise to pay the additional four dollars per page for the book. {Ins. Co. v. Raddin, 120 U. S. 183; Philpott v. Qruninger, 14 Wall. 564.) Under the contract total abstinence is not a condition intended to work a forefeiture of the additional four dollars per page. (Story Eq. Juris. § 1314; Peachy v. Duke of Somerset, 1 Str. 447; Sloman v. Walker, 1 Bro. Ch. 418; Fisk v. Gray, 11 Allen, 132; Long v. Towl, 42 Mo. 545; Bagley v. Peddie, 16 N. Y. 469; Cotheal v. Talmade, 9 N. Y. 551.) If, under the contract, performance of plaintiff’s covenant to abstain was intended to be the consideration of defendant’s promise to pay the additional four dollars per page, performance of that covenant did not become a mere condition or a condition relating to the manner of performance of the contract, by any act alleged in the complaint. ( Viele v. Ins. Co., 26 Iowa, 9.) The facts set forth in the complaint can, in no aspect of the case, constitute a waiver of the right of the defendant to rely on plaintiff’s breach of his covenant to abstain as a defense to his liability to pay the four dollars per page for the book. They constitute, at most, a release or a new contract, requiring a consideration. (Monkhouse v. Shepherson, 11 Ad. & El. 411; Hare on Cont. 251; Parke v. F. A. T. Co., 120 N. Y. 51; P. Mfg. Co. v. R. G. Co., 110 App. Div. 341; Kiernan v. Ins. Co., 150 N. Y. 190.)</p>

<p>Passenger on Railroad — Pall in Stepping from Train—Contributory Negligence — Negligence. Defendant’s train on which plaintiff was a passenger stopped short of the station where he was to alight, and at a point where there was no platform and the distance from .the lower step to the ground could have been found to be three feet. After the call of the station, plaintiff started for the front of the car. Plaintiff’s witnesses all testified that they neither saw nor felt any motion of the train. There were no lights in the front of the car which was next the engine, and no light on the rear of the engine and no trainmen at that point. The station was closed. Plaintiff stepped off the car in the darkness and was injured by the fall. Held, that it was a question for the jury to determine whether the plaintiff was guilty of contributory negligence in so alighting from the train; also whether defendant was guilty of negligence in the manner of arriving at the station.</p>

The plaintiff, a practical builder, brought this action to recover of the defendant for services rendered in building and superintending the erection of a stable, power house, and equipment. There is no dispute as to the fact that this was done pursuant to a written contract between the parties, but the plaintiff was permitted to introduce oral testimony as to the meaning of the contract in certain particulars as to which it was said to be ambiguous.

Appeal, by permission, from that part of an order of the Appellate Division of the Supreme Court in the second judicial department,… Held: “ That the acts of the defendant in building and maintaining its pier and in the construction of a shed on the platform adjoining the bulkhead at Bed Lane, and in building the trestles to its sand bin at the foot of Bed Lane, and in its operation of the same — although by such acts the public were and are prevented from having free…

<p>1. Judgment — Effect of. A judgment obtained without fraud or collusion is conclusive evidence, in suits between creditors in relation to the property of the debtor, of the indebtedness of the latter and of the amount of such indebtedness. There is no difference in the effect of a judgment whether it is sought to be enforced against the general property of a debtor in the hands of an assignee to pay creditors, or in case of an assignment of specific property for the same purpose. A judgment is equally conclusive in an action to set aside an instrument for fraud or in one to enforce it as valid.</p> <p>3. Evidence to Controvert Judgment Not Admissible. P. conveyed an interest in certain property to L. in trust to pay his own debts, the residue after the death of his wife to go to his children. Two years after the date of the trust deed a creditor of P. obtained a judgment against him in an action by the judgment creditor against the trustee and the beneficiary of P. to charge such judgment on the trust fund. Held, that the judgment was competent and conclusive evidence of P.’s indebtedness and evidence could not he given on the trial to show that P. was not indebted to plaintiff at the date of the trust deed in the full amount of the judgment.</p>

This action was brought to recover damages which the plaintiff claims to have sustained through the acts of the defendants’ servant, who is charged with forcing his way into a room occupied by the plaintiff in defendants’ hotel, and addressing to her insulting, derogatory and defamatory language. The action was brought to trial before the court and a jury. At the opening of the trial the defendants’ counsel moved to dismiss the complaint upon the pleadings.

The nature of the action and the facts, so far as material, are stated in the opinion. ’ Adultery by the wife forfeits her rights arising from the marriage relation and frees the husband from his duties to her. (Doe v. Roe, 23 Hun, 19; Hunter v. Boucher, 3 Pick. 289; Cooper v. Lloyd, 6 C. B. [N. S.] 519; Atkyns v. Pearce, 2 C. B. [N. S.] 763; Forster v. Forster, 1 Hagg.

The nature of the action and the facts, so far as material, are stated in the opinion. The learned trial judge erred in holding that the right of redemption of the plaintiffs and of the defendant McCrea was cut off by section 379 of the Code of Civil Procedure. (Winslow v. Clark, 47 N. Y. 261; Warder v. Enslen, 73 Cal. 291; Miner v. Beekman, 50 N. Y. 337; Kip v. Hirsh, 21 J. & S. 1; Maurhoffer v. Mittnacht, 12 Misc.

the first judicial department, entered June 26, 1908, which affirmed an order of the New York County Surrogate’s Court assessing a transfer tax on the estate of Julia B. Thayer, deceased. The facts, so far as material, are stated in the opinion.

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 26, 1908, which reversed an order of Special Term granting a motion for a compulsory order of reference.</p> <p>The following questions were certified :</p> <p>“First. Do the causes of action set out in plaintiff’s complaint and the denials and defenses in the answer entitle plaintiff to a jury trial ? .</p> <p>“Second. Did the court have jurisdiction to refer the issues in the first question to a referee, to hear, try and determine the same without the consent of plaintiff ?</p> <p>“ Third. Did the court have jurisdiction to refer the issue arising on the counterclaim in defendant’s answer to a referee to hear, try and determine the same without the consent of plaintiff, although all the other issues in the action were not referable ?</p> <p>“ Fourth. Do the pleadings in this' case present a difficult question of law within the meaning of section 1013 of the Code of Civil Procedure?</p> <p>“ Fifth. Does the issue arising on the counterclaim in this action involve the examination of a long account within the meaning of section 1013 of the Code of Civil Procedure ?</p> <p>“ Sixth. Do the issues arising on the cause of action set out in the complaint and the denials and defenses set out in the answers involve an examination of a long account within the meaning of section 1013 of the Code of Civil Procedure ? ”</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The first question certified to this court by the Appellate Division should be answered in the negative, because it affirmatively appears by the papers on this appeal that so many separate and distinct items of account will be litigated on the trial that a jury cannot keep the evidence in mind in regard to each of the items and give it the proper weight and application when they retire to deliberate upon their verdict. (Hill v. Reynolds, 119 App. Div. 689.) The second question certified to this court by the Appellate Division should be answered in the affirmative, because the pleadings in the action, leaving the counterclaim out of consideration, authorize a compulsory order of reference. (Irving v. Irving, 90 Hun, 422; 149 N. Y. 573; Hay v. Boyle, 22 Misc. Rep. 155; Price v. Parker, 44 Misc. Rep. 582; Ames v. French, 83 App. Div. 452; Rowland v. Rowland, 141 N. Y. 485.)</p> <p>The first question should be answered in the affirmative, for the reason that no cause is shown why plaintiff should be deprived of his right to a jury trial. (Const. of N. Y. art. 1, § 2; Whitwell v. Willard, 42 Mass. 216; Nelson v. Posey Co., 105 Ind. 287; Purvis v. Kroner, 23 Pac. Pep. 260; Richardson v. Wingate, 10 West. L. J. 145; Turgeon v. Cote, 33 Atl. Rep. 787; Mc Williams v. Allen, 45 Mo. 573; P. Nat. Bank v. S. M. P. Co., 60 N. W. 981; Freeman v. A. M. Ins. Co., 13 Abb. Pr. 124; Van Rensselaer v. Jewett, 6 Hill, 373; Welch v. Darragh, 52 N. Y. 590.) The court did not have jurisdiction to refer the issues without the consent of the plaintiff; therefore, the second certified question should be answered in the negative. (Hill v. Reynolds, 189 N. Y. 558.)</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 24, 1908, which affirmed an order of Special Term directing distribution of snrplus moneys arising upon a mortgage foreclosure.</p> <p>The order is appealable to this court since a surplus proceeding is a special proceeding. (1 Fiero on Spec. Proc. [2d ed.] 15, 457; Wiltsie on Mortgage Foreclosures, § 753; Nicholls N. Y. Practice, 16; M. L. Ins. Co. v. Anthony, 33 Wkly. Dig. 427; Elwell v. Robbins, 43 How. Pr. 108; Matter of Gibbs, 58 How. Pr. 502; U. D. S. Inst. v. Osley, 4 Hun, 657; Bergen v. Carman, 79 N. Y. 146; Burchell v. Osborne, 119 N. Y. 486, 491; Quackenbush v. O’Hare, 129 N. Y. 485; Hyman v. Hauff, 138 N. Y. 48.).</p> <p>The order is not appealable to this court, and the appeal herein should be dismissed. It is not an appeal from an order determining a special proceeding, but from an order in an action, and this court has no jurisdiction- to hear the same. (Van Arsdale v. King, 155 N. Y. 325; Fowler v. Fowler,. 147 N. Y. 673; People v. A. L. & T. Co., 150 N. Y. 117; McDermott v. Hennessy, 9 Hun, 59; G. S. Bank v. Sharer, 25 Hun, 409; Hammond v. N. L. Assn., 168 N. Y. 263; N. Y. S. Co. v. S. G. & E. L. Co., 156 N. Y. 645; Fliess v. Buckley, 90 N. Y. 286; M. L. Ins. Co. v. Bowen, 47 Barb. 618; Matter of Gibbs, 58 How. Pr. 502.)</p>

The facts, so far as material, are stated in the opinion. The president of the borough of Manhattan had on January 1,1902, power to create a bureau of highways in said borough and to appoint the relator the head of said bureau. (L. 1901, ch. 466, § 388; L, 1897, ch. 378, § 450; 2 Abb. Mun.

Shattuck, deceased, and declaring the eighth clause thereof valid and binding. Said Mary E. Shattuck died on the 14th day of March, 1906, leaving a last will and testament which has been duly-admitted to probate.

<p>1. Penal Statute Strictly Construed. In construing a penal statute the court will not go beyond the clear meaning and purpose or attempt to spell out a new offense not clearly indicated by the ordinary use of the words employed.</p> <p>2. Penal Statute, ip Uncertain, Will Be Held Void. If a penal statute is doubtful or uncertain, or is such as to be impossible to comply with, it will be held to be of no force or effect.</p> <p>3. Laws op 1904, Chap. 566, § 22, Invalid in Part. So much of section 22 of chapter 566 of the Laws of 1904, before amendment, as rendered it unlawful to sell milk as certified milk unless “ conspicuously marked with the name of the association certifying it ” is invalid.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 3,1908, which reversed an order of Special Term denying a motion for retaxation of costs, and granted such motion. The facts, so far as material, and the question certified are stated in the opinion. The County Court of Kings county has jurisdiction of actions against the city of New York. (Code Civ.

The nature of the controversy and the facts, so far as material, are stated in the opinion. Section 97 of the Insurance Law does not, and was not intended to, affect the contract of October 30, 1901. (Mottley v. L. & N. R. R. Co., 150 Fed.

The nature of the action and the facts, so far as material, are stated in the opinion. The sale of foreign grouse was not prohibited by section 27 of the Forest, Fish and Game Law; the provisions of that act as to the filing of a bond created a rule of evidence only, and not a prohibition.

The nature of the action and the facts, so far as material, are stated in the opinion. At the time when the plaintiffs demanded delivery the bonds were issued, and the contracts had matured. (Hirsch v. Jones, 191 N. Y. 195; Ryan v. Train, 95 App. Div. 71; Duryea v. Bonnell, 18 App. Div. 151; Maguire v. Halsted, 18 App.

Appeal, by permission, from a judgment of tbe Appellate Division of the Supreme Court in the first judicial department, entered October 20, 1908, affirming an interlocutory judgment in favor of defendants entered upon a decision of the court on trial at Special Term.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 16, 1907,… Held: in KnicleerbocJcer Ice Co. v. Forty-second Street The history of the locus in quo and of the claim of interest therein by the ice company is as follows: In 1686 the city of New York became vested with the land between high and low-water mark on the easterly shore of the North river. That was by virtue of the Dongan charter.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial judge properly dismissed the complaint as the notice of intention to sue served upon the corporation counsel of the city of New York was clearly insufficient. (L. 1886, ch. 572, § 1; Merz v. City of Brooklyn, 128 N. Y. 617; Curry v. City of Buffalo, 135 N. Y. 366 ; 5 Thompson on Negligence, § 6325; Missano v. Mayor, etc., 160 N. Y. 123; Rauber v. Vil. of Wellsville, 83 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The facts found do not support the conclusion of law drawn by the trial judge in favor of the plaintiff, and defendant’s exception thereto is well taken. (Krekeler v. Aulbach, 169 N. Y. 372; Miller v. N. Y. & N. S. Ry. Co., 183 N. Y. 123; Archer v. City of Mount Vernon, 171 N. Y. 639; Knowles v. Van Wyck, 176 N. Y. 430; Smith v. B. & A. R. R. Co., 181 N. Y. 132; People ex rel.

This action was brought to recover damages alleged to have been sustained by reason of an illegal change of grade of a certain street in the former village of Edgewater, now borough of Richmond, city of Mew York. The facts, so far as material, are stated in the opinion. The facts found do not support the conclusion of law drawn by the trial judge in favor of the plaintiff, and defendant’s exception thereto is well taken. (Krekeler v. Aulbach, 169 N. Y. 372; Code Civ.

This action was brought to recover for personal injuries alleged to have been received through defendant’s negligence in permitting an obstruction to remain in one of its streets. The facts, so far as material, are stated in the opinion. The trial court properly nonsuited ■the plaintiff, and the order of the Appellate Division reversing the judgment entered upon the nonsuit is erroneous. (Jenney v. City of Brooklyn, 120 N. Y. 164; Morgan v. Vil. of Penn Yan, 42 App.

Appeal in the first of the above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 17, 1908, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court.

Supreme Court in the first judicial department entered June 29, 1907, affirming a judgment in favor of plaintiff entered upon the decision of the court ata Trial Term, a jury having been waived. The nature of the action and the facts, so far as material, are stated in the opinion. The lease in suit, while innocent on its face, was made in furtherance of an unlawful purpose, known to both parties, and is, therefore, unenforceable.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 18, 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>Negligence could not properly be imputed to the defendant because it owned and operated cars of different types, sizes and makes, nor because the bumpers on said cars were not all of the same width and exactly the same height. (Stackpole v. Gray, 99 App. Div. 262; Salters v. D. & H. C. Co., 3 Hun, 338; Coppins v. N. Y. C. & H. R. R. R. Co., 43 Hun, 26; W. & G. R. R. Co. v. McDade, 135 U. S. 554; Probst v. Delamater, 100 N. Y. 266; Laidlaw v. Sage, 158 N. Y. 73; Searles v. M. R. Co., 101 N. Y. 661; Rupert v. B. H. Ry. Co., 154 N. Y. 90; Frounfelker v. D., L. & W. R. R. Co., 74 App. Div. 224; Filbert v. N. Y., N. H. & H. R. R. Co., 95 App. Div. 199.)</p> <p>There is sufficient evidence to sustain the finding of the jury that the defendant was negligent. (Ellis v. N. Y., L. E. & W. R. R. Co., 95 N. Y. 546; Gottlieb v. N. Y., L. E. & W. R. R. Co., 100 N. Y. 462; Strauss v. N. Y., N. H. & H. R. R. Co., 91 App. Div. 583; Pullutro v. D., L. & W. R. R. Co., 27 N. Y. S. R. 63.)</p>

<p>Submission of Controversy, When Unauthorized. The statute, section 1379, Code Civil Procedure, providing for the submission of a controversy to the Supreme Court, authorizes such submission only where “it might be the subject of an action.” This excludes special proceedings, and as the court is not authorized to answer abstract questions of law, a submission of facts upon which a judgment cannot be rendered is unauthorized and the submission must be dismissed. This court will not in such case direct a judgment where the proper relief is only by mandamus or certiorari.</p>

The facts, so far as material, are stated in the opinion. The appointees of the sheriff’s office sustain a highly confidential relation to the sheriff, who delegates them to act in his place and stead in matters involving discretion and the highest degree of skill and integrity, and it is not practicable to fill such positions by a competitive examination. (Blust v. Collier, 62 App. Div. 458, 478; People ex rel. Sweet v. Lyman, 157 N. Y. 368; People ex rel.

Gross-appeals, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 6,1907, reversing in part and affirming in part an interlocutory judgment of Special Term overruling a demurrer to the complaint. This action was brought to recover rent for a part of certain premises in the city of Hew York for the months of May to September, inclusive, in the year 1906.

<p>The facts, so far as material, are stated in the opinion.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff failed to maintain the burden of proof imposed upon Mm to show affirmatively that plaintiff’s intestate was free from negligence contributing to the injuries complained of, and it appears affirmatively that he was guilty of such negligence.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 22, 1908, which affirmed an order of Special Term denying an application for a peremptory writ of mandamus to compel the defendant to issue an order for the payment of a rebate on a surrendered liquor tax certificate.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 29,1908, which affirmed an order of Special Term denying a petition for the revocation of a liquor tax certificate.</p>

Gaffney from the enrollment book of the twenty-fifth election district of the fifteenth assembly district of the county of New York.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth 'judicial department, entered July 7, 1908, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the defendant to commence condemnation proceedings against the relator.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 28, 1906, which reversed a judgment in favor of plaintiffs entered upon a verdict and an order denying a motion for a new trial and granted a new trial in an action to recover for the death of plaintiffs’ intestate alleged to have occurred through the negligence of the defendants.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 25, 1907, winch 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 a violation of sections 364, 438 and 438a of the Penal Code.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 23, 1908, which affirmed an interlocutory judgment of Special Term sustaining a demurrer to the answer in an action to cancel and avoid a gift of real property.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 22,1907, reversing so much of a judgment in favor of plaintiff entered upon a verdict directed by the court as failed to award to him possession of certain shares of stock and granted a new trial in an action of replevin.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 7, 1907, which reversed a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granted a new trial in an action to recover for personal injuries alleged to have been received through defendant’s negligence.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered August 6, 1907, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover upon a policy of fire insurance.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 16, 1907, sustaining defendant’s exceptions ordered to be heard in the first instance by the Appellate Division and granting a motion for a new trial in an action to recover for personal injuries alleged to have been received through defendant’s negligence, the trial of which had resulted in a verdict for plaintiff.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 6, 1907, sustaining plaintiff’s exceptions ordered to be heard in the first instance by the Appellate Division, and granting a new trial in an action to recover for personal injuries alleged to have been received through defendant’s negligence on the trial of which the complaint had been dismissed.</p>

The Special Term held that the defendant was chargeable with such commissions from March 12,1900, to July 31, 1905. The Appellate Division held that he was chargeable with such commissions only from March 12, 1900, to April 9, 1903. The difference in these results depended upon the proper construction of the contract.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 26, 1908, which affirmed an order of the New York county Surrogate’s Court declaring the estate of the decedent herein exempt from transfer taxation.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 7, 1908, which reversed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the defendant to reinstate the relator in a position formerly held by him in the department of public works.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 10, 1907, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint in an action for libel. The following question was certified : “ Does the complaint state facts sufficient to constitute a cause of action 2 ”

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 7, 1908, which reversed a judgment in favor-of plaintiffs entered upon a verdict directed by the court and an order denying a motion for a new trial and granted a new trial in an action to recover for an alleged breach of contract.</p>

This action was brought to restrain the defendants from constructing a certain pier and bulkhead at or near the foot of West Eorty-tliird street in the city of New York, in such a way as to interfere with the right of the plaintiff to construct and maintain a pier at the foot of that street.

<p>Appeal from an order of'the Appellate Division of the Supreme Court in the third judicial department, entered J uly 7, 1908, which affirmed an order of Special Term denying an application for a peremptory writ of mandamus to compel the defendants to place the relator’s name upon the roster of employees in the office of the sheriff of Kings county.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 13, 1908, which affirmed a judgment of Special Term sustaining a demurrer to and dismissing the complaint in an action to recover for extra work alleged to have been done in connection with the performance of a contract.</p>

the Supreme Court in the first judicial department, entered May 15, 1908, reversing a judgment in favor of defendant entered upon a verdict directed by the court and granting a new trial in an action to recover license fees alleged to be due the plaintiff from defendant for operating cars in Ninth avenue in the city of New York.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 25, 1908, which affirmed a judgment of Special Term construing the will of Sarah W. F. Smith, deceased, as to whether a certain power given to trustees named therein devolved upon a substituted trustee.</p>